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finding an office manager not protected from patronage dismissal and considering as one factor that the officer manager "assists with the preparation of an annual budget"
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EP-04-CA-056-PRM.
July 29, 2005
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT
On this day, the Court considered Defendant Gilbert Sanchez's ("Sanchez") "Motion to Dismiss or, in the Alternative, Motion for Summary Judgment" ("Motion"), filed on August 31, 2004, and Plaintiff Yolanda Flores' and Plaintiff Maria Esther Mora's (collectively "Plaintiffs") "Response in Opposition to Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment" ("Pls.' Resp."), filed on September 22, 2004, in the above-captioned cause. After due consideration, the Court is of the opinion that Sanchez's Alternative Motion for Summary Judgment should be granted for the reasons set forth below.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs filed an Original Petition in state court on December 23, 2003, which included a detailed factual background of the case. Plaintiffs subsequently amended their complaint, following removal of the case to federal court, on March 26, 2004. However, the amended complaint excluded nearly all of the background facts set forth in the Original Petition. On August 31, 2004, Plaintiffs moved the Court for leave to file amended pleadings, attaching a proposed second amended complaint that included the operative facts listed in Plaintiffs' Original Petition but missing from the First Amended Petition. Though the Court will ultimately deny Plaintiffs leave to file a second amended complaint, it is apparent from Plaintiffs' Original Petition and proposed second amended complaint that Plaintiffs did not intend that the Court disregard the operative facts listed in the Original Petition, regardless of their exclusion from Plaintiffs' First Amended Petition. Thus, while the Court only evaluates those claims Plaintiffs allege in their First Amended Petition, the following background facts are taken from both Plaintiffs' First Amended Petition and, where not contradictory or otherwise repudiated by the subsequent amended pleading, Plaintiffs' Original Petition.
Defendant Sanchez is the District Clerk for the County of El Paso. Sanchez took office on January 1, 2003. Plaintiff Yolanda Flores was hired as Chief Deputy to the District Clerk on February 20, 2001, and served in that position until January 2, 2003. Plaintiff Maria Esther Mora became Office Administrative Support Manager of the District Clerk's office in October, 2001, and served in that position until January 2, 2003.
Yolanda Flores began her employment with the County of El Paso on June 19, 1994 as a data entry clerk. In 1997, she was hired by the District Clerk's office as a computer systems support analyst, before obtaining the position of Chief Deputy.
Plaintiff Mora began her employment with the County of El Paso on December 4, 1994, as a court clerk assigned to one of the district courts. She subsequently became a supervisor and then a system analyst within the District Clerk's office before being promoted to Office Administrative Support Manager in 2001.
In January 2002, Plaintiffs' superior, former District Clerk Edie Rubalcaba, decided not to seek re-election. That same month Plaintiff Mora entered the race for District Clerk of El Paso County. Plaintiff Flores assisted in Plaintiff Mora's campaign efforts. On March 12, 2002, a primary election was held for the District Clerk position to determine the Democratic candidate for District Clerk in the November 2002 general election. Sanchez and another candidate, Dolores Baca, obtained enough votes to proceed to a runoff election on April 9, 2002 — Plaintiff Mora did not. Thereafter, Plaintiff Mora allegedly supported Sanchez's candidacy for District Clerk.
Sanchez was elected District Clerk of El Paso County on November 5, 2002. On January 2, 2003, Sanchez chose not to deputize Plaintiffs to resume their former positions, effectively terminating their employment. Sanchez contends that after assuming office he discovered numerous office documents were missing and office computer files had been deleted. On January 3, 2003, Sanchez filed a complaint against Plaintiffs with the El Paso County Sheriff's Office. Def.'s Mot., El Paso County Sheriff's Department Multi-Purpose Report, Sanchez Aff. Therein, he stated that he had been told by staff that some disgruntled employees were involved in records tampering. Id. Sanchez stated that he, along with his new Chief Deputy Clerk Irma Keith, searched through the files of the District Clerk's office and discovered that hard copy and computer files related to the operation of the office were missing. Id. Sanchez stated his belief that the hard copies were shredded and the computer files were deleted by the disgruntled employees in order to "make [his] job impossible." Id. He specifically identified Plaintiff Flores and Plaintiff Mora as two of the employees involved in the tampering or destruction of files and/or documents. Id.
Plaintiffs allege that as early as November 8, 2002, Sanchez informed the Plaintiffs that they would not be deputized.
Sanchez stated that he suspected Supervisor Miguel Fan of document tampering, as he fired Fan on January 2, 2003 for allegedly shredding documents. Def.'s Mot., El Paso County Sheriff's Department Multi-Purpose Report, Sanchez Aff. Sanchez also stated that he suspected James Fashing of the Domestic Relations Office of document tampering, as Sanchez had been informed from personnel that Fashing had been working on Fan and Plaintiffs' computers in the District Clerk's office. Id.
On January 9, 2003, the El Paso Times published an article attributing certain allegations to Sanchez about files being destroyed or subjected to tampering in the District Clerk's office. The El Paso Times published a similar article on January 10, 2003 as well. A warrant for the arrest of Plaintiffs was subsequently issued. On March 13, 2003, Plaintiff Flores and Plaintiff Mora were arrested and booked into the El Paso County Jail on a charge of tampering with government documents. On July 29, 2003, the El Paso County District Attorney's office declined to prosecute the charge against Plaintiffs.
At no time have Plaintiffs identified the information Sanchez gave to the newspaper, if any, or what exact statements Sanchez made regarding Plaintiffs within the January 9th article.
On December 23, 2003, Plaintiffs filed suit against Sanchez alleging several state causes of action and an action for violation of Plaintiffs' First Amendment rights pursuant to 42 U.S.C. § 1983. On February 9, 2004, Sanchez removed the case to federal court. Plaintiffs allege claims against Sanchez in his official capacity as District Clerk, for (1) defamation, (2) malicious prosecution, (3) wrongful termination, and (4) negligent use of tangible property under Texas law. Plaintiffs also assert a claim against Sanchez in his individual and official capacity for violation of Plaintiffs' First Amendment rights under federal law. On August 31, 2004, Sanchez filed the instant motion seeking dismissal of Plaintiffs' claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure, or alternatively, summary judgment in his favor as to all of Plaintiffs' claims.
Because the Court will consider Sanchez's affidavit and supporting documentation attached to the instant motion, as well as the affidavits Plaintiffs have attached to their responsive pleading, the Court will treat the instant motion as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Stewart v. Murphy, 174 F.3d 530, 532-33 (5th Cir. 1999) (citing FED. R. CIV. P. 12(b)).
II. DISCUSSION
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) mandates summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." The party moving for summary judgment bears the burden of demonstrating both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005) (citations omitted). Once the absence of a genuine issue of material fact has been demonstrated, the non-movant "must go beyond the pleadings and designate specific facts showing there is a genuine issue for trial." Little, 37 F.3d at 1075 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Additionally, "[a]ll facts and inferences must be viewed in the light most favorable to the nonmoving party." Armstrong v. Am. Home Shield Corp., 333 F.3d 566, 568 (5th Cir. 2003) (citation omitted).
B. Plaintiffs' State Law Claims Against Sanchez
Plaintiffs attempt to assert four state law claims against Sanchez in his official capacity. "[O]fficial-capacity suits `generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Hafer v. Melo, 502 U.S. 21, 25 (1991) (citations omitted). Thus, "[a] suit against an official in his official capacity is not a suit against the official, but is rather a suit against the governmental entity he represents." Hidalgo County v. Gonzalez, 128 S.W.3d 788, 796 (Tex.App.-Corpus Christi 2004, no pet.) (citations omitted); see also Bennett v. Pippen, 74 F.3d 578, 584 (5th Cir. 1996) (noting that a suit against a county official in his official capacity is a suit against the county "directly in everything but name.") (citation omitted). Therefore, Plaintiffs' state law claims against Sanchez in his official capacity are claims against El Paso County, a governmental entity within the meaning of the Texas Tort Claims Act.
Plaintiffs originally alleged Texas state law claims of defamation, malicious prosecution, wrongful termination, and negligent use of tangible property against Sanchez in his individual and official capacity. However, on June 14, 2005, the Court issued an Order granting Sanchez's motion to dismiss Plaintiffs' state law claims against Sanchez in his individual capacity, pursuant to Texas Civil Practice and Remedies Code § 101.106. During the pendency of Sanchez's motion to dismiss pursuant to § 101.106 and the instant motion, Plaintiffs moved the Court for leave to amend their complaint to eliminate the state law causes of action against Sanchez in his official capacity and delete Plaintiffs' claim against Sanchez for negligent use of tangible property. However, the Court previously concluded that such an amendment was sought to avoid application of § 101.106 and was unavailing because subsequent amendments to a complaint have no effect on the application of § 101.106. See Order Granting Defendant's Motion to Dismiss Pursuant to Texas Civil Practice and Remedies Code Section 101.106 (Docket No. 33), at 5 n. 6.
The Court recognizes that some Texas state cases require a plaintiff to explicitly name the governmental entity they are suing in order to fall under the purview of the Texas Tort Claims Act, rather than suing an official in his official capacity. See, e.g., Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex.App.-Houston [1st Dist.] 1998, no pet.); Perales v. Kinney, 891 S.W.2d 731, 733 (Tex.App.-Houston [1st Dist.] 1994, no writ); Huntsberry v. Lynaugh, 807 S.W.2d 16, 17 (Tex.App.-Tyler 1991, no writ); see also TEX. CIV. PRAC. REM. CODE § 101.102(b) ("The pleadings of the suit must name as defendant the governmental unit against which liability is to be established."). However, this formalistic requirement appears limited to cases involving pro se prisoner plaintiffs attempting to sue individual correctional employees under the Texas Tort Claims Act. Thus, the foregoing cases, and their progeny, are inapposite to the instant case. The Court is of the opinion that Plaintiffs' pleadings stating claims against Sanchez in his official capacity as District Clerk of El Paso County, Texas sufficiently name a governmental unit, the County of El Paso, for purposes of compliance with Texas Civil Practice and Remedies Code § 101.102(b). Therefore, Plaintiffs' claims against Sanchez in his official capacity essentially name the County of El Paso as a defendant in this case. Thus, Plaintiffs' state law claims against Sanchez are governed by the provisions of the Texas Tort Claims Act.
It is well-established that "counties enjoy sovereign immunity except to the extent abrogated by the Texas Tort Claims Act." Morris v. Copeland, 944 S.W.2d 696, 698 (Tex.App.-Corpus Christi 1997, no pet.); see also Travis County v. Pelzel Assocs., 77 S.W.3d 246, 248 (Tex. 2002) ("A county is a governmental unit protected by the doctrine of sovereign immunity.") (citations omitted). An employee of a governmental unit sued in his official capacity "may raise any defense available to the governmental unit, including sovereign immunity." Nueces County v. Ferguson, 97 S.W.3d 205, 214 (Tex.App.-Corpus Christi 2002, no pet.) (citations omitted). "[I]f the governmental unit would be immune due to sovereign immunity, so is the governmental official sued in his official capacity." Id. at 214-15 (citations omitted). Under Texas law, the government has not waived immunity from suit for intentional torts. TEX. CIV. PRAC. REM. CODE § 101.057(2) (2004); Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001). Plaintiffs concede that "state law specifically excludes intentional torts from applicability of the [Texas Tort Claims Act]." Pls.' Resp., at 5.
Defamation is, of course, an intentional tort. Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex.App.-Houston [1st Dist.] 1999, pet. dism'd w.o.j.) (citations omitted). Malicious prosecution is also an intentional tort, Closs v. Goose Creek Consol. Indep. Sch. Dist., 874 S.W.2d 859, 869 (Tex.App.-Texarkana 1994, no writ) (citation omitted). Sanchez, in his official capacity, is entitled to sovereign immunity from Plaintiffs' intentional tort claims of defamation and malicious prosecution. Thus, Plaintiffs' claims of defamation and malicious prosecution must be dismissed.
Plaintiffs' claim of wrongful termination also fails. "[W]rongful termination is not a tort for which the [Texas] Tort Claims Act waives governmental immunity." Martinez v. Hardy, 864 S.W.2d 767, 775 (Tex.App.-Houston [14th Dist.] 1993, no writ) (citation omitted). Accordingly, Sanchez, in his official capacity, is entitled to sovereign immunity as to Plaintiffs' claim of wrongful termination.
Plaintiffs indirectly raise the issue of civil service protection for their former employment positions. Pls.' Resp., at 5 ¶ 6 ("Defendant precluded Plaintiffs from receiving a fair hearing at the Civil Service Commission. . . ."). However, Plaintiffs cite no authority to support the proposition that civil service status bears any significance to issues concerning a state law claim of wrongful termination and a governmental entity's defense of sovereign immunity. The Court notes that even if it construed Plaintiffs' wrongful termination claim as a breach of contract claim related to their alleged status as civil service employees, the alleged breach of an employment contract, standing alone, would not result in a waiver of sovereign immunity. See Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 706 (Tex. 2003) ("[C]ontract formation, by itself, is not sufficient to waive a governmental unit's immunity from suit.") (citations omitted); Pelzel Assocs., 77 S.W.3d at 248 (noting that a governmental unit's sovereign immunity encompasses two principles — immunity from suit and immunity from liability. Although a contract between a governmental unit and a private party waives the government's immunity from liability, it does not automatically waive immunity from suit. "Express consent is required to show that immunity from suit has been waived." The burden to show consent to suit rests with the plaintiff.) (citations omitted). Thus, Plaintiffs' vague allegation of civil service status, without more, does not affect Sanchez's sovereign immunity defense. Plaintiffs' allegations, that currently comprise a claim of wrongful termination, fail under all possible state law theories and must be dismissed.
Lastly, Plaintiffs concede that their fourth state law claim for negligent use of tangible property, based on Sanchez's alleged failure to use the County of El Paso's computer system to more accurately investigate the facts leading up to the adverse actions against Plaintiffs, "is not an established cause of action[.]" Pls.' Resp., at 6 ¶ 9. Plaintiffs also expressed a desire to delete their claim of negligent use of tangible property. Id. Thus, the Court concludes that Plaintiffs' claim of negligent use of tangible property should be dismissed.
Plaintiffs also alleged Sanchez's misuse of the County of El Paso's computer system that resulted in his failure to ascertain accurate facts leading up to the adverse actions taken against Plaintiffs.
Because Plaintiffs' state law claims against Sanchez in his official capacity are either barred by sovereign immunity or conceded as being without merit, Sanchez is entitled to summary judgment in his favor as to Plaintiffs' state law claims. C. Plaintiffs' First Amendment Claim Against Sanchez
Plaintiffs allege that Sanchez discharged them from their respective positions within the District Clerk's office "for not supporting [Sanchez] in his bid for election to the position of District Clerk. . . ." Pls.' First Am. Pet., at 2 ¶ 6. Plaintiffs also assert their belief that Sanchez discharged them in retaliation for Plaintiffs' active involvement in seeking the position of District Clerk. Id. at 2 ¶ 7. Plaintiffs contend that their discharge violated their First Amendment rights of free political association and expression. Plaintiffs sue Sanchez in his individual and official capacities, for violation of their First Amendment rights, pursuant to 42 U.S.C. §§ 1983 and 1988. 1. Plaintiffs' First Amendment Claim Against Sanchez in his Individual Capacity
Plaintiffs' First Amended Petition mentions alleged violations of both the Texas and United States constitutions. Plaintiffs do not argue that the rights of free association and expression under the Texas Constitution are broader than or different from the corresponding rights afforded by the First Amendment to the United States Constitution. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 98 (Tex. 2004) (discussing the requirement that a plaintiff show that the Texas Constitution offers distinct protection from the Federal Constitution within the context of an equal protection claim). Consequently, the Court will not construe the Texas Constitution as affording additional, or otherwise different, protection from that provided under the First Amendment. Id. Absent authority to the contrary, the Court's discussion of Plaintiffs' First Amendment claims applies with equal force to any alleged violations of the Texas Constitution. McKnight v. State, 874 S.W.2d 745, 746 n. 1 (Tex.App.-Fort Worth 1994, no writ).
In response to Plaintiffs' allegations against Sanchez in his individual capacity, Sanchez asserts the defense of qualified immunity. "[G]overnment officials performing discretionary functions generally are granted a qualified immunity and are `shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Wilson v. Layne, 526 U.S. 603, 609 (1999) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "When a defendant invokes qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of the defense." McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (citation omitted). In addressing qualified immunity, a court proceeds in three steps. Aucoin v. Haney, 306 F.3d 268, 272 (5th Cir. 2002). First, a court evaluates "whether the plaintiff has alleged a violation of a constitutional right." Id. (citations omitted). Second, a court inquires whether the constitutional right was clearly established at the time of the alleged violation. Id. (citation omitted). If the answer to both questions is yes, a court asks whether "the official's conduct was objectively reasonable in light of that established constitutional right." Id.
Where a defendant moves for summary judgment on the basis of qualified immunity, a court initially performs the three-step qualified immunity analysis by viewing the allegations in the light most favorable to the non-movant. See Hope v. Pelzer, 536 U.S. 730, 736 (2002) ("The threshold inquiry a court must undertake in a qualified immunity analysis is whether plaintiff's allegations, if true, establish a constitutional violation.") (citation omitted); Rutland v. Pepper, 404 F.3d 921, 923 (5th Cir. 2005) ("The first step in qualified immunity analysis is determining whether a plaintiff has successfully alleged facts showing the violation of a statutory or constitutional right by [government] officials.") (citation omitted). "If no constitutional right would have been violated were the [plaintiff's] allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U.S. 194, 201 (2001). In that instance, the plaintiff would have failed to demonstrate inapplicability of the qualified immunity defense.
If a plaintiff successfully alleges a constitutional violation of a clearly established right, where an official's conduct was not objectively reasonable, a court must still determine if "the record at least gives rise to a genuine issue of material fact as to whether the [defendant] actually engaged in the conduct that violated th[e] clearly established right." Wallace v. Wellborne, 204 F.3d 165, 167 (5th Cir. 2000) (emphasis added and citation omitted).
The Court proceeds by first evaluating whether Plaintiffs' allegations successfully allege a violation of their constitutional rights.
a. Do Plaintiffs Assert a Constitutional Violation?
Plaintiffs argue that Sanchez violated the "clearly established protection of their First Amendment right to political association and expression." Pls.' Resp., at 4 ¶ 6. It is true that "[p]olitical belief and association constitute the core of those activities protected by the First Amendment[.]" Rutan v. Republican Party of Ill., 497 U.S. 62, 69 (1990) (quoting Elrod v. Burns, 427 U.S. 347, 356 (1976)). It is also true that "the First Amendment places certain constraints upon dismissals from public employment based upon political affiliation and speech," also known as political patronage dismissals. Brady v. Fort Bend County, 145 F.3d 691, 704 (5th Cir. 1998). As a general matter, patronage dismissals clearly infringe First Amendment interests. Aucoin, 306 F.3d at 273 (quoting Elrod, 427 U.S. at 360). Specifically, a public employer cannot act against an employee because of the employee's support of a rival candidate "unless the employee's activities in some way adversely affect the government's ability to provide services." Vojvodich v. Lopez, 48 F.3d 879, 887 (5th Cir. 1996). Furthermore, the act of a public employee running for office, even if running against his present employer, falls within the protection of the First Amendment. See Click v. Copeland, 970 F.2d 106, 111-12 (5th Cir. 1992) (treating rival candidacies of two deputy sheriffs against a sheriff/public employer as speech on a matter of public concern within the meaning of the First Amendment).
b. Analytical Standard for Patronage Dismissals.
Sanchez contends, and the Plaintiffs do not dispute, that Plaintiffs' positions, Chief Deputy and Office Manager, were policy making or confidential positions in relation to Sanchez, the elected District Clerk. Sanchez further argues that political dismissals of employees are permissible if the employees hold policy making or confidential positions. Def.'s Mot., at 5 ¶ 7. The Court disagrees. "Although the fact that a public employee holds a policy making position is relevant . . . it is not the ultimate determination." Vojvodich, 48 F.3d at 884. The Supreme Court eschewed a categorical approach to patronage dismissals, instead indicating that emphasis is properly placed on whether the employer can demonstrate that political considerations are "appropriate requirement[s] for the effective performance of the public office involved." Branti v. Finkel, 445 U.S. 507, 518 (1980); Vojvodich, 48 F.3d at 884 (citation omitted).
The Court notes that in order for the Plaintiffs to be policy making employees in relation to Sanchez, Sanchez must himself be a policymaker. See Stegmaier v. Trammell, 597 F.2d 1027, 1038 (5th Cir. 1979) (holding that deputy circuit clerks could not be policy making employees, even though they held authority concurrent to an elected circuit clerk, because the circuit clerk himself was not a policymaker). The fact that Sanchez is an elected official does not necessarily make him a policymaker. Id. at 1035, 1038. However, Texas law governing the powers and duties of elected District Clerks amply demonstrates that Sanchez is a policymaker. Compare TEX. GOV'T CODE § 51.303 (2004) (describing the duties of District Clerks), with TEX. GOV'T CODE § 51.304 (affording District Clerks discretion to implement a written plan for the storage of records and the execution of several other statutory duties).
In this regard, the Court must balance the Plaintiff public employees' "speech and associational rights as citizen[s]" against their Defendant public employer's right to "loyal and efficient service" in order to determine whether a First Amendment violation has occurred, as delineated in the Supreme Court cases Pickering v. Board of Education and Connick v. Myers. McBee v. Jim Hogg County, 730 F.2d 1009, 1014 (5th Cir. 1984) (en banc). The Pickering/ Myers balancing test is two-pronged. First, the public employee "bears the burden of establishing that his speech or activity related to a matter of public concern." Aucoin, 306 F.3d at 274 (citations omitted). After the employee demonstrates a matter of public concern, the public 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. (citations omitted). Cases utilizing the Pickering/ Myers test in the patronage dismissal context are analyzed on a fact-specific spectrum or continuum. McBee, 730 F.2d at 1014. The Fifth Circuit has specifically noted that "cases involving public employees who occupy policymaker or confidential positions fall much closer to the employer's end of the spectrum, where the government's interests more easily outweigh the employee's (as a private citizen)." Kinsey v. Salado Indep. Sch. Dist., 950 F.2d 988, 994 (5th Cir. 1992) (en banc).
c. Application of the Pickering/Myers Test.
"There is no doubt that campaigning for a political candidate is a matter of public concern." Aucoin, 306 F.3d at 274. It is also clear that running for political office is a matter of public concern. Click, 970 F.2d at 111-12. Thus, Plaintiffs have sufficiently demonstrated that their activities related to a matter of public concern.
The burden now shifts to Sanchez to demonstrate that the governmental interest in office efficiency overrides Plaintiffs' interest in seeking office and supporting a rival candidate for office, respectively. Central to this determination is whether Plaintiff Flores and Plaintiff Mora occupied policy making positions within the District Clerk's office. "A policymaker is an employee 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. . . . Consideration should also be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals." Wiggins v. Lowndes County, 363 F.3d 387, 390 (5th Cir. 2004) (internal quotations and citations omitted). In this case, Sanchez submits uncontradicted and undisputed evidence that Plaintiffs were policy making employees.
The Chief Deputy to the District Clerk, Plaintiff Flores' former position, is required to maintain and enforce office procedures and supervise and train department employees. Def.'s Mot., El Paso County Job Description: Chief Deputy, at 1 ¶ 2. The Chief Deputy also manages the District Clerk's office in the absence of the District Clerk. Id. at 1 ¶ 2. The Chief Deputy assists with hiring and recommends promotions, transfers, and terminations. Id. at 1 ¶ 4. The Chief Deputy provides guidance and/or counseling to department employees and acts as a liaison between the District Clerk's office and other county departments and state agencies. Id. at 1 ¶ 4 ¶ 5. The Chief Deputy also assists in the preparation of the annual office budget and supervision of expenditures. Id. at 1 ¶ 5. The Chief Deputy position is the highest ranking position in the District Clerk's office, and reports only to the elected District Clerk himself. Id. at 1.
The Office Administrative Support Manager, Plaintiff Mora's former position, is required to manage the District Clerk's office "ensuring efficient operation and resolution of potential problems." Def.'s Mot., El Paso County Job Description: Office Admin/Support Manager, at 1. The Office Manager also "[w]orks in conjunction with [the] Chief Deputy to ensure all functions related to [the] District Clerk's [o]ffice are performed efficiently and effectively." Id. The Office Manager utilizes her judgment in adapting and applying routine guidelines. Id. The Office Manager must assume leadership responsibilities in the absence of the Chief Deputy and District Clerk. Id. The Office Manager assists with the development of office policy and procedure and ensures that subordinates follow office policy and procedure. Id. at 1 ¶ 1. The Office Manager also assists with the preparation of an annual budget. Def.'s Mot., El Paso County Job Description: Office Admin/Support Manager, at 1 ¶ 3. The Office Manager is the second highest-ranked position in the District Clerk's office, reporting only to the Chief Deputy and the elected District Clerk. Id. at 1.
The Court finds that, far from being simply ministerial employees, Plaintiffs possessed broad discretionary authority in formulating critical policies and maintaining the efficiency and effectiveness of the District Clerk's office, in furtherance of the discharge of the District Clerk's statutory duties. Thus, the Court finds that Plaintiffs were policy making employees within the District Clerk's office and, as a consequence, the Pickering/ Myers balance falls closer to the public employer's end of the spectrum.
Other pertinent efficiency considerations in the Pickering/ Myers test include whether the employee's protected activity "impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the [employee's] duties or interferes with the regular operation of the enterprise." Rankin v. McPherson, 483 U.S. 378, 388 (1987) (citation omitted). The extent of authority entailed by the employee's position must also be considered. Id. at 390. The efficiency prong also permits a public employer to account for the potential disruptiveness of an employee's political activities. Caruso v. De Luca, 81 F.3d 666, 670-71 (7th Cir. 1996) (citing Waters v. Churchill, 511 U.S. 661, 680 (1994)); see also Myers, 461 U.S. at 152 ("[W]e do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.").
Plaintiffs were "actively involved in seeking the position of District Clerk[.]" Pls.' First Am. Pet., at 2 ¶ 7. Plaintiff Mora was Sanchez's "political opponent in the race for District Clerk." Id. at 5 ¶ 14. Plaintiff Flores "openly supported [Plaintiff Mora] in her unsuccessful bid for District Clerk against [Sanchez]." Id. It is important to recall that in the absence of the elected District Clerk, the Chief Deputy manages the office and in the Chief Deputy's absence, the Office Manager manages the office. Sanchez alleges that it is vital that he have the trust and confidence, i.e., loyalty, of his Chief Deputy and Office Manager. The Court agrees. Cf. Regan v. Boogertman, 984 F.2d 577, 580 (2d Cir. 1993) ("There is no likely circumstance in which a shared ideology is more important than when an elected official appoints a deputy who may act in his or her stead.") (citations omitted).
Plaintiffs seem to attach some significance to the allegation that Plaintiffs opposed Sanchez in a primary election, but thereafter supported his candidacy in the general election. Assuming this is true, nonetheless "[p]rimary election fights can be famously brutal, sometimes more so than contests in the general election, and animosity between candidates is likely to result." Curinga v. City of Clairton, 357 F.3d 305, 311 (3d Cir. 2004) (citation omitted).
Considering the close working relationship and coordination required between Sanchez and his Deputy Clerk and Office Manager, and the fact that Plaintiffs' positions entailed implementing and maintaining an elected official's policies, the Court finds that the potential for disruption of the effective performance of the District Clerk's office outweighs the considerations urged by Plaintiffs. Sanchez is entitled to have the trust and loyalty of his Chief Deputy and Office Manager, and could reasonably question Plaintiffs' trust and loyalty in light of their opposition to his election to office. Cf. Wilbur v. Mahan, 3 F.3d 214, 218-19 (7th Cir. 1993) ("An elected official is entitled to insist on the loyalty of his policy making subordinates, and a declaration that the subordinate means to run against the official at the next election is the height of disloyalty."); see also Armstrong v. City of Arnett, 708 F. Supp. 320, 324 (W.D. Okla. 1989) (holding that a policy making public employee of a city (police chief) that "voluntarily chose to inject himself into the political fray" by supporting candidates opposing those ultimately elected to the city's Board of Trustees did not have his First Amendment rights violated when the candidates he opposed voted for, and caused, his termination. "Plaintiff by his active opposition to Defendants . . . created a situation that, when Defendants . . . were elected, imperiled the working relationship between the [employer] and Plaintiff. . . . Plaintiff because of his support for opposition candidates clearly endangered, if not made impossible, the close working relationship necessary between [the plaintiff and his public employer]. . . .").
The Court is of the opinion that the First Amendment does not mandate that Sanchez, as an elected District Clerk, retain a rival candidate and her close political supporter as the chief assistants and primary supervisors in his office. Sanchez is entitled to exercise his discretion to hire a Chief Deputy and Office Manager of his choice to effectively fulfill the duties of his office. Consequently, Plaintiffs fail to allege a violation of their First Amendment rights and, therefore, fail to meet the first prong of the qualified immunity analysis. Thus, Sanchez remains entitled to qualified immunity and is entitled to judgment as a matter of law. The Court concludes that Sanchez's Alternative Motion for Summary Judgment should be granted as to Plaintiffs' First Amendment claims against him in his individual capacity.
2. Plaintiffs' First Amendment Claim Against Sanchez in his Official Capacity
Plaintiffs also assert a First Amendment § 1983 claim against Sanchez in his official capacity, which essentially is a claim against the County of El Paso. Bennett, 74 F.3d at 584 (noting that a suit against a county official in his official capacity is a suit against the county "directly in everything but name.") (citation omitted). "[M]unicipal liability under § 1983 requires proof of three elements: a policymaker; an official policy; and a violation of constitutional rights whose `moving force' is the policy or custom." Delano-Pyle v. Victoria County, 302 F.3d 567, 574 (5th Cir. 2002) (internal quotations and citation omitted). As discussed thoroughly above, Plaintiffs fail to allege a violation of their First Amendment rights.
Consequently, with no underlying constitutional violation committed by Sanchez, the moving force behind his conduct becomes irrelevant. Kohler v. Englade, 365 F. Supp. 2d 751, 758 (M.D. La. 2005) (pursuant to the court's previous determination that no underlying constitutional violation occurred, "there can be no causal link [between a constitutional violation and municipal policy] and no municipal liability.") Therefore, the Court need not decide whether Sanchez possesses final policy making authority sufficient to subject the County of El Paso to § 1983 liability for his alleged actions in this case. See Cozzo v. Tangipahoa Parish Council-President Gov't, 279 F.3d 273, 289 (5th Cir. 2002) ("a final decisionmaker's adoption of a course of action `tailored to a particular situation and not intended to control decisions in later situations' may, in some circumstances, give rise to municipal liability under § 1983.") (citing City of St. Louis v. Proprotnik, 485 U.S. 112, 124-25 (1988)). Plaintiffs fail to establish a genuine issue of material fact regarding the presence of the requisite elements for imposition of municipal liability against Sanchez in his official capacity. Therefore, Sanchez is entitled to summary judgment in his favor as to Plaintiffs' First Amendment claims against him in his official capacity.
Plaintiffs also allege that Sanchez's act of terminating their employment "created an informal policy to chill any other employee from seeking election for the position during his tenure." Pls.' Resp., at 4 ¶ 5. Assuming this is true, the Court fails to see how this alleged post-termination informal policy could have injured Plaintiffs or how Plaintiffs could possibly have standing to allege such an injury since they would not have been subject to the policy's effects. Thus, the Court need not resolve whether such a policy in fact exists and is affecting current employees in the District Clerk's office.
III. CONCLUSION
Based on the foregoing analysis of facts and legal principles, the Court concludes that Sanchez in his official capacity, and hence the County of El Paso, is immune from suit for intentional torts. Consequently, Plaintiffs claims against Sanchez, in his official capacity, for defamation and malicious prosecution fail as a matter of law. Additionally, Sanchez is entitled to sovereign immunity from Plaintiffs' claim of wrongful termination. Therefore, these claims must be dismissed. The Court also accepts Plaintiffs' concession that their claim against Sanchez for negligent use of tangible property is not an established cause of action and concludes that the claim should be dismissed. Furthermore, the Court finds that Sanchez is entitled to summary judgment on Plaintiffs' First Amendment § 1983 claim, both in his individual and official capacities.
Accordingly, IT IS ORDERED that Defendant Gilbert Sanchez's Alternative Motion for Summary Judgment is GRANTED. IT IS FURTHER ORDERED that the above-captioned cause is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that all pending motions, if any, are DENIED AS MOOT. IT IS FINALLY ORDERED that the Clerk shall close this matter.