The opinion
United States Court of Appeals,
Fifth Circuit.
No. 94-50599.
E. Dempsey GUNACA, Plaintiff-Appellant,
v.
The STATE OF TEXAS, office of the District Attorney—El Paso
County, et al., Defendants,
El Paso County, Alicia R. Chacon, County Judge, and Jaime
Esparza, District Attorney, in his official and individual
capacity, Defendants-Appellees.
Oct. 3, 1995.
Appeal from the United States District Court for the Western
District of Texas.
Before REAVLEY and EMILIO M. GARZA, Circuit Judges, and PRADO,
District Judge.*
EMILIO M. GARZA, Circuit Judge:
Dempsey Gunaca sued the State of Texas, El Paso County, El
Paso County Judge Alicia Chacon, in her official capacity, and El
Paso County District Attorney Jaime Esparza, in his official and
individual capacity, over the loss of his job as an investigator at
the El Paso County District Attorney's Office. Gunaca alleged age
discrimination under the Age Discrimination in Employment Act of
1967, 29 U.S.C. § 621 (1988), and First Amendment violations under
42 U.S.C. § 1983 (1988). The district court granted Esparza,
Chacon, and El Paso County's motion for summary judgment, and
dismissed Gunaca's complaint. Gunaca appeals the dismissal, and we
affirm.
*
District Judge of the Western District of Texas, sitting by
designation.
1
I
Dempsey Gunaca was employed as an investigator by the former
El Paso County District Attorney, Steve Simmons. When Simmons ran
for re-election in 1992, he was defeated in the democratic primary
by Jaime Esparza. Esparza, who ran unopposed in the general
election, chose not to re-appoint Gunaca to his former position.
Gunaca filed suit against Esparza, claiming that Esparza's refusal
to re-appoint him was motivated by age discrimination in violation
of the ADEA, and by political animus in violation of the First
Amendment. Gunaca also named as defendants the State of Texas, El
Paso County,1 and El Paso County Judge Alicia Chacon.2 The district
court dismissed the State of Texas early in the proceedings, and
later heard motions for summary judgment from the remaining
defendants. The court granted summary judgment in favor of El Paso
County and Chacon on the grounds that neither was a proper party to
the suit. The court also granted summary judgment in favor of
Esparza, holding that investigators in the El Paso County District
Attorney's Office are not "employees" for the purposes of the ADEA,
see 29 U.S.C. § 630(f) (1988) (excluding members of "personal
staff" of elected county officials from ADEA's definition of
"employee"), and that Gunaca failed to provide summary judgment
evidence in support of his claim that Esparza's refusal to
1
In his complaint, Gunaca alleged that he "was employed by
the Defendant El Paso County."
2
In his complaint, Gunaca alleged that "Alicia C. Chacon is
County Judge of El Paso County, and is charged with the overall
supervision of personnel matters, and maintains and administers
all County employee payroll and retirement records."
2
re-appoint him was motivated by political animus. Gunaca appeals
the district court's grant of summary judgment in favor of Esparza,
El Paso County, and Chacon.
II
We review the district court's grant of summary judgment de
novo. Montgomery v. Brookshire, 34 F.3d 291, 294 (5th Cir.1994).
Summary judgment is proper under Rule 56 of the Federal Rules of
Civil Procedure when all the evidence viewed in the light most
favorable to the non-movant shows that "there is no genuine issue
as to any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56
"mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); accord
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en
banc). The movant bears the initial burden of demonstrating the
absence of a genuine issue of material fact, but need not negate
the elements of the nonmovant's case. Celotex, 477 U.S. at 323,
106 S.Ct. at 2553; accord Little, 37 F.3d at 1075. "If the moving
party fails to meet this initial burden, the motion must be denied,
regardless of the nonmovant's response." Little, 37 F.3d at 1075.
"Once the moving party has supported its contention that there is
no genuine issue of material fact and that it is entitled to
3
judgment as a matter of law, the burden is on the nonmoving party
"to go beyond the pleadings and by her own affidavits, or by the
depositions, answers to interrogatories, and admissions on file,
designate "specific facts" showing that there is a genuine issue
for trial.' " Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1445
(5th Cir.1993) (quoting Celotex, 477 U.S. at 324, 106 S.Ct. at
2553.)
A
Gunaca argues that the district court erroneously granted
Esparza's motion for summary judgment on Gunaca's ADEA claim on the
grounds that Gunaca is not an "employee" under § 630(f) of the
ADEA. Under the ADEA, it is unlawful to discharge an employee
because of the employee's age. 29 U.S.C. § 623(a)(1); accord
Montgomery, 34 F.3d at 294. However, § 630(f) of the ADEA excludes
from its definition of "employee":
[A]ny person elected to public office in any State or
political subdivision of any State by the qualified voters
thereof, or any person chosen by such officer to be on such
officer's personal staff, or an appointee on the policymaking
level or an immediate adviser with respect to the exercise of
the constitutional or legal powers of the office.
29 U.S.C. § 630(f).3 The district court held that Gunaca "was a
3
Not long before the events at issue in this suit occurred,
Congress passed the Civil Rights Act of 1991, Pub.L. No. 102-166,
105 Stat. 1071 (1991). Section 321 of the Act provided in
relevant part that:
The rights, protections, and remedies provided pursuant
to section 302 and 307(h) of this title shall apply
with respect to employment of any individual chosen or
appointed, by a person elected to public office in any
State or political subdivision of any State by the
qualified voters thereof—
4
member of the personal staff of the district attorney and is
therefore not an "employee' covered by the Act." Gunaca contends
that Esparza failed to show that there are no genuine issues of
fact as to whether Gunaca fell into the personal staff exception.
(1) to be a member of the elected official's personal
staff.... § 321(a) (codified at 2 U.S.C. § 1220(a) and
amended by the Congressional Accountability Act of 1995,
Pub.L. No. 104-1); see generally, Rutland v. Moore, 54 F.3d
226 (5th Cir.1995) (discussing § 321). The rights and
protections provided by § 302 included freedom from
discrimination based on age "within the meaning of section
633a of [the ADEA];" and the remedies provided by § 307(h)
included, "[i]n the case of a determination that a violation
based on age has occurred," "such remedies as would be
appropriate if awarded under section 633a(c) of [the ADEA]."
While no party to the present suit has raised the
issue, it is possible that § 321 offered Gunaca a way to
circumvent the exemptions found in § 630(f) of the ADEA and
a vehicle for his ADEA claim. Cf. Rutland, 54 F.3d at 230
(assuming without holding that § 321 repealed the exemptions
in § 630(f)). We need not resolve what rights Gunaca might
have had under § 321 because the record in the present case
shows that Gunaca's suit against Esparza was not brought in
compliance with the administrative and procedural
requirements set forth in that statute. See, e.g., § 321(b)
(codified at 2 U.S.C. § 1220(b) and amended by the
Congressional Accountability Act of 1995, Pub.L. No. 104-1)
(providing that complaints brought under § 321 must be filed
with EEOC, and that the EEOC will issue a final order on the
claim); § 321(c) (codified at 2 U.S.C. § 1220(c) and
amended by the Congressional Accountability Act of 1995,
Pub.L. No. 104-1) (requiring that "[a]ny party aggrieved by
a final order under subsection (b) may obtain a review of
such order under chapter 158 of title 28, United States
Code. For the purpose of this review, the Equal Employment
Opportunity Commission shall be an "agency' as that term is
used in chapter 158 of title 28, United States Code."); 28
U.S.C. § 2344 (1988) ("On entry of a final order reviewable
under [chapter 158 of Title 28], the agency shall promptly
give notice thereof by service or publication in accordance
with its rules. Any party aggrieved by the final order may,
within 60 days after its entry, file a petition to review
the order in the court of appeals wherein venue lies. The
action shall be against the United States." (emphasis
added)).
5
"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." Montgomery, 34 F.3d at 294. In Teneyuca v. Bexar
County, 767 F.2d 148 (5th Cir.1985), we identified six factors that
courts have found significant in determining whether a Title VII
plaintiff fell under that statute's personal staff exemption:
(1) Whether 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
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; see also Clark v. Tarrant County, 798 F.2d 736, 742
(5th Cir.1986) (applying Teneyuca factors in Title VII case). We
have considered those same factors in our application of the ADEA's
personal staff exception. See Montgomery, 34 F.3d at 294-95
(applying Teneyuca in ADEA case).
The list is not exhaustive, Teneyuca, 767 F.2d at 151-52;
Montgomery, 34 F.3d at 295, but it does guide us in looking to 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 (quoting Owens
v. Rush, 654 F.2d 1370, 1375 (10th Cir.1981)); accord Montgomery,
34 F.3d at 295. Our consideration of these factors is tempered by
the legislative history of the exception, which indicates that it
6
is to be narrowly construed. Teneyuca, 767 F.2d at 152; Clark,
798 F.2d at 742; Galvan v. Bexar County, 785 F.2d 1298, 1303 n. 8
(5th Cir.1986).4 Finally, we have 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 judgment.' " Montgomery, 34 F.3d at 295 (quoting
Teneyuca, 767 F.2d at 152).
Gunaca has conceded that under chapter 41 of the Texas
Government Code, the district attorney has plenary power to appoint
and remove investigators, see Tex.Gov't Code Ann. § 41.102 (West
1988) ("A prosecuting attorney may employ the assistant prosecuting
attorneys, investigators, secretaries, and other office personnel
that in his judgment are required for the proper and efficient
operation and administration of the office."); Tex.Gov't Code Ann.
§ 41.105 ("All personnel of a prosecuting attorney's office are
subject to removal at the will of the prosecuting attorney."), and
that investigators are personally accountable only to the district
attorney, see Tex.Gov't Code Ann. § 41.109(b) ("An investigator is
under the exclusive authority and direction of the prosecuting
4
" "It [was] the conferees intent that this exemption
[should] be construed narrowly.' " Teneyuca, 767 F.2d at 152,
(quoting 1972 U.S.C.C.A.N. 2137, 2180). "Furthermore, Senator
Ervin, the sponsor of the original Senate amendment, agreed that
the purpose of the exception was to "exempt from coverage those
who are chosen by ... the elected official ..., and who are in a
close personal relationship and an immediate relationship with
him. Those who are his first line advisers.' " Id. (quoting 118
Cong.Rec. 4492-93 (1972)). " "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.' " Montgomery, 34 F.3d at 295
(quoting Teneyuca, 767 F.2d at 152).
7
attorney...."). Thus, Gunaca has conceded the first two Teneyuca
factors.
Gunaca contends, however, that investigators do not represent
the district attorney in the eyes of the public because only those
employees of the district attorney who are licensed to practice
law, such as the assistant district attorneys, can represent the
district attorney in the eyes of the public. In applying the third
Teneyuca factor in Clark v. Tarrant County, 798 F.2d 736 (5th
Cir.1986), we deemed relevant the fact that a probation officer did
not represent her appointing judge to the general public in the
same way that "[an] assistant district attorney represents the
district attorney in legal proceedings and in the eyes of the
public." Id. at 743. However, we discussed the scope of the
factor at greater length in Montgomery v. Brookshire, 34 F.3d 291
(5th Cir.1994), which concerned the application of the personal
staff exemption to sheriffs' deputies. We held in Montgomery that
"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." Id. at 296. While we noted that
"[o]ther considerations may arguably also be pertinent [in applying
the third Teneyuca factor] in the context of lawyers in a law
office representing an entity such as a city or county," id. at 297
n. 6, the consideration emphasized in Montgomery is equally
important in the present case. As Esparza stated in his motion for
summary judgment, investigators are statutorily authorized to make
8
arrests and to serve warrants, capiases, and subpoenas issued in
criminal cases. Tex.Gov't Code Ann. § 41.109(a). Investigators
are also authorized to execute search warrants. Glaze v. State,
165 Tex.Crim. 626, 310 S.W.2d 88 (1958). In performing these
functions, which necessarily involves interaction with the public,
investigators are no less representatives of the district attorney
for want of a law license than the deputies in Montgomery were
representatives of the sheriff despite their position in the office
hierarchy.
Gunaca also contends that the district attorney does not
exercise a considerable amount of control over investigators.
Esparza alleged in his motion for summary judgment, and the
district court held, that the language of section 41.109(b) of the
Texas Government Code, providing that the district attorney has
"exclusive authority and direction" over investigators, established
this degree of control. However, in our application of the fourth
Teneyuca factor in Montgomery, which we decided after the district
court issued its order granting summary judgment, we emphasized
instead the degree of control an employer actually exerts over the
employee's day-to-day activities. See Montgomery, 34 F.3d at 296
(stressing in its application of fourth Teneyuca factor that
defendant "barely exhibited any control over Montgomery's
day-to-day activities"). Because the relevant provisions of
section 41.109(b) are duly accounted for in our consideration of
the second Teneyuca factor, we follow the approach taken by the
court in Montgomery. Summary judgment evidence shows that Gunaca
9
spoke to the former district attorney "practically every day."
Gunaca stated in a deposition: "I would discuss certain activities
and my investigation activities with him, to make sure that I
wasn't overstepping something or doing something wrong or—we had
quite a few conversations like that." This evidence clearly
establishes that the former district attorney had considerable
day-to-day control over Gunaca's activities.
Gunaca argues that the working relationship between the
district attorney and the investigators is not intimate. In our
application of the sixth Teneyuca factor in Montgomery, we
considered the frequency with which Montgomery and his employer
discussed business and consulted each other regarding their work.
Id. at 296. In his motion for summary judgment, Esparza argued
that a district attorney must maintain an intimate working
relationship with investigators because "[i]n determining whether
or not to initiate a criminal prosecution, a district attorney must
confer, consult and rely upon the investigator assigned to gather
evidence in the case," making the investigator "privy to the
confidential communications and deliberations of the elected
official." He supported his claim with affidavits from himself and
an assistant that included essentially the same statements. Gunaca
offered as summary judgment evidence his own affidavit, in which he
stated that his working relationship with the former district
attorney involved "reporting, reviewing, and seeking approval of
investigative activities" but that he was "never included in
organizational meetings, planning sessions, policy-making
10
decisions, or case strategy meetings." That Gunaca was not
included in such meetings and decision-making does not detract from
the fact that he regularly discussed business with the former
district attorney, consulted the district attorney regarding work,
and was consulted by the district attorney regarding work.
The fifth Teneyuca factor is the level of the position within
the organization's chain of command. As we explained in
Montgomery: "Factor five concerns [plaintiff'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.' " Montgomery, 34 F.3d at 296 (holding that
employee was not a member of employer's "personal staff" where four
levels of supervisors separated employee from employer). Unrefuted
summary judgment evidence established that in the organizational
structure of the district attorney's office, three levels of
supervisors separate investigators from the district attorney. The
district court acknowledged that "[t]he investigator's position
within the district attorney's chain of command is not at the top,"
but emphasized that "the district attorney and his assistants place
a great deal of trust in their investigators, and rely heavily upon
them."
Although the investigators' position in the office's
organizational structure provides Gunaca with his strongest
argument that investigators are not part of the district attorney's
11
personal staff, the argument does not have much force. Summary
judgment evidence established that there are about fifty-five
appointed positions in the district attorney's office, half the
number of appointed law enforcement officials in the sheriff's
office in Montgomery, see Montgomery, 34 F.3d at 297 (noting that
appointed law enforcement officials numbered 113). In a small
office, an employee's placement in the chain of command is less
significant to a consideration of the nature and circumstances of
the employment relationship between employee and employer. Thus,
while the placement of the position of investigator in the office's
organizational structure is evidence that Gunaca was not a member
of the former district attorney's personal staff, we cannot say
that it is very strong evidence that he was not.
Our inquiry into the nature and circumstances of the
employment relationship between Gunaca and the former district
attorney for the purpose of determining whether Gunaca is exempt
from the protection of the ADEA is highly factual. It would not
lend itself well to disposition by summary judgment were it not
that most of the necessary facts are provided by statute or by
Gunaca's testimony and summary judgment evidence. Our
consideration of the Teneyuca factors supports the district court's
judgment, and that judgment does not rely on the resolution of any
genuine issues of fact. Therefore, we conclude that the district
court properly granted Esparza's motion for summary judgment on
Gunaca's ADEA claim on the grounds that Gunaca is excluded from the
coverage of the ADEA.
12
B
Gunaca argues next that the district court erroneously
granted Esparza's motion for summary judgment on the question of
whether Esparza violated the First Amendment by refusing to
re-appoint Gunaca in retaliation for Gunaca's political support of
the former district attorney.5 Although Esparza contended in his
motion for summary judgment that he is entitled to qualified
immunity from liability on Gunaca's First Amendment claim, the
district court granted Esparza's motion on the grounds that Gunaca
"undeniably engaged in protected political activity, [but] has
failed to come forward with credible evidence that such activity
was the reason for his non-employment."
5
Gunaca also argues that the district court erroneously
granted El Paso County and Judge Alicia Chacon summary judgment
on his § 1983 claim on the grounds that neither was a proper
party to the suit. The municipal defendants argued in their
motion for summary judgment that, under Texas law, the district
attorney possesses exclusive authority to hire and fire
investigators. "Accordingly," they concluded, "neither Defendant
Chacon nor Defendant the County of El Paso can be held legally
responsible for Defendant Esparza's decision to refuse to
reappoint Plaintiff...." On appeal, Gunaca claims that he "does
not dispute the fact that the decision to hire and fire was
possessed totally by Esparza," but contends instead, as he did in
his response to Esparza's motion for summary judgment, that the
municipal officials control investigators' salary and employment
benefits. We have previously held that such assertions do not
state a claim for municipal liability under § 1983. See Clark v.
Tarrant County, 798 F.2d 736, 747-48 (5th Cir.1986) (affirming
summary judgment dismissal of municipal defendants in § 1983
gender bias in pay and promotions suit because only alleged basis
for liability was that municipal defendants, who "did not set
salaries nor influence promotions," controlled other aspects of
the employment relationship). Because Gunaca provided no summary
judgment evidence to support any other theory of municipal
liability, we conclude that the district court properly granted
the municipal defendants summary judgment on Gunaca's § 1983
claim.
13
Government officials performing discretionary functions are
entitled to qualified immunity from suit unless their conduct
violated clearly established statutory or constitutional rights of
which a reasonable person would have known. Gibson v. Rich, 44
F.3d 274, 277 (5th Cir.1995). A claim of immunity must be resolved
at the earliest possible stage of litigation because it entails an
entitlement to immunity from suit and not merely a defense to
liability. Hunter v. Bryant, 502 U.S. 224, 226, 112 S.Ct. 534,
536, 116 L.Ed.2d 589 (1991); accord Gibson, 44 F.3d at 277. In
reviewing Esparza's assertion of qualified immunity, we must first
determine whether Gunaca has alleged a violation of a
constitutional right. Siegert v. Gilley, 500 U.S. 226, 232, 111
S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991); Vojvodich v. Lopez, 48
F.3d 879, 886 (5th Cir.1995). In Elrod v. Burns, 427 U.S. 347,
357, 96 S.Ct. 2673, 2681, 49 L.Ed.2d 547 (1976), the Supreme Court
held that because "political belief and association constitute the
core of those activities protected by the First Amendment," id. at
356, 96 S.Ct. at 2681, the practice of patronage dismissals
"clearly infringes First Amendment interests," id. at 360, 96 S.Ct.
at 2683. Gunaca alleged in his complaint that "his discharge and
failure to be rehired by Defendant Jaime Esparza ... [was]
motivated by reasons of plaintiff's political preferences, and in
retaliation for said political preference." Thus, Gunaca has at
least alleged a violation of his constitutional rights.
Our second step is to determine whether the constitutional
right that Esparza allegedly violated was clearly established at
14
the time of the alleged violation. In Anderson v. Creighton, 483
U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the Supreme Court
emphasized that "[t]he operation of this standard ... depends
substantially upon the level of generality at which the relevant
"legal rule' is to be identified." Id. at 639, 107 S.Ct. at 3038-
39. The Court discussed the dangers of defining the relevant legal
right too generally, and held that "the right the official is
alleged to have violated must have been "clearly established' in a
more particularized, and hence more relevant sense: The contours
of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right." Id.
at 640, 107 S.Ct. at 3039; accord Matherne v. Wilson, 851 F.2d at
752, 756 (5th Cir.1988). Thus, in Anderson, which involved a
warrantless search of a residence, the Court held that "It simply
does not follow immediately from the conclusion that it was firmly
established that warrantless searches not supported by probable
cause and exigent circumstances violate the Fourth Amendment that
[the defendant's] search was objectively legally unreasonable," and
held that the lower court should have considered whether it was
"clearly established that the circumstances with which [the
defendant] was confronted did not constitute probable cause and
exigent circumstances." Anderson, 483 U.S. at 640-41, 107 S.Ct. at
3039 (emphasis added).
In Noyola v. Texas Department of Human Resources, 846 F.2d
1021 (5th Cir.1988), we considered the effect of Anderson on "the
qualified immunity of public officials whose actions are alleged to
15
have violated an employee's first amendment rights." Noyola, 846
F.2d at 1025. Because our consideration of such First Amendment
claims involves a case-specific balancing of the employee's First
Amendment rights and the government's interest in maintaining
discipline and efficiency in the work place, id., we held that
"[t]here will rarely be a basis for a priori judgment that the
termination or discipline of a public employee violated "clearly
established' constitutional rights." Id. In Noyola, reasoning
that "[n]o Fifth Circuit case [at the time of the alleged
violation] had found a first amendment violation on facts like
these," id. at 1026, we held that the defendant official was
entitled to qualified immunity because " "reasonable government
officials, knowing only that they must not infringe on [employee
free speech rights], would not necessarily know just what conduct
was prohibited.' " Id. at 1025 (quoting Hodorowski v. Ray, 844
F.2d 1210, 1217 (5th Cir.1988)).
Esparza took office in January of 1993. By that time, both
the Supreme Court and the Fifth Circuit had recognized a class of
public employees from whom political allegiance may be demanded:
public employees whose First Amendment interests are outweighed by
a governmental interest in the employees' political loyalty. See,
e.g., Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1295, 63
L.Ed.2d 574 (1980) (holding that an employee is not protected from
political patronage dismissal if "the hiring authority can
demonstrate that party affiliation is an appropriate requirement
for the effective performance of the public office involved");
16
Vojvodich, 48 F.3d at 887 (holding that "by January 1992 at the
latest," law 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").6
The 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 or to not hire an
investigator on the grounds that the investigator supported the
campaign of the official's opponent. See Noyola, 846 F.2d at 1026
(reversing district court's rejection of defendant's claim of
qualified immunity in case involving discharge that allegedly
violated public employee's First Amendment rights because, at the
6
In Matherne, we considered whether a plaintiff's asserted
rights under Elrod were "clearly established" at the time the
plaintiff's employer allegedly violated them. The plaintiff had
provided summary judgment evidence that he did not fall into the
Branti exception, and we, taking the facts in the light most
favorable to the party responding to the motion for summary
judgment, took that fact as established for the purposes of our
inquiry. Matherne, 851 F.2d at 757. Gunaca did not address the
Branti exception in his response to Esparza's motion for summary
judgment, nor did he provide summary judgment evidence that would
have supported a claim that the position of investigator does not
fall under the exception.
17
time of the alleged violation, no Fifth Circuit case had found a
First Amendment violation on similar facts). "This is not to say
that an official action is protected by qualified immunity unless
the very action in question has previously been held unlawful, but
it is to say that in the light of preexisting law the unlawfulness
must be apparent." Anderson, 483 U.S. at 640, 107 S.Ct. at 3039.
Because reasonable public officials could have differed on the
lawfulness of Esparza's actions at the time they occurred, Esparza
is entitled to qualified immunity. See Blackwell, 34 F.3d at 303
(holding that defendant is entitled to qualified immunity if
reasonable officials could differ on the lawfulness of defendant's
actions).7 Thus, we affirm on the grounds of qualified immunity
the district court's grant of summary judgment on Gunaca's § 1983
claim against Esparza.
III
For the foregoing reasons, we AFFIRM the district court's
grant of summary judgment on Gunaca's ADEA and § 1983 claims.
7
The question " "is not whether the law was settled, viewed
abstractly, but whether, measured by an objective standard, a
reasonable officer would know that his action [was] illegal.' "
Click v. Copeland, 970 F.2d 106, 109 (5th Cir.1992) (quoting
Matherne, 851 F.2d at 756).
18