               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT


                               S))))))))))))))Q
                                No. 93-8034
                               S))))))))))))))Q


     ALTON MONTGOMERY,

                                                  Plaintiff-Appellant,

           versus



     O.A. "BOB" BROOKSHIRE, Sheriff of
     Ector County, Texas, and ECTOR COUNTY,
     TEXAS,

                                                  Defendants-Appellees.


                          S))))))))))))))))))))))))Q
      Appeal from the United States District Court for the
                    Western District of Texas
                          S))))))))))))))))))))))))Q
                           (September 23, 1994)

Before GARWOOD, DAVIS and SMITH, Circuit Judges.

GARWOOD, Circuit Judge:

     Defendant-appellee Ector County Sheriff O.A. "Bob" Brookshire

(Sheriff   Brookshire)      fired    plaintiff-appellant     Deputy      Alton

Montgomery (Montgomery).        Montgomery brought civil rights, age

discrimination,     and    First    Amendment     claims   against    Sheriff

Brookshire and Ector County.          The district court dismissed the

civil rights claims and granted summary judgment in favor of the

defendants on the age discrimination and First Amendment claims.

Montgomery appeals only the district court's order granting summary
judgment on the age discrimination claim.   We reverse the district

court's grant of summary judgment on that claim and remand the

cause.

                   Facts and Proceedings Below

     Sheriff Brookshire hired Montgomery in 1982 as a deputy

sheriff to investigate alleged hot check and fraud violations.    In

July 1991, after receiving a telephone call from his daughter

complaining of unauthorized entry into her home by her ex-husband,

Jimmy Browning, Montgomery prepared a crime report and had a

warrant issued for his ex-son-in-law's arrest.     On November 25,

1991, Jimmy Browning was served with the warrant for his arrest

when he appeared in court concerning child support arrearage. That

same day, Sheriff Brookshire called Montgomery into his office to

discuss the Browning case and the Sheriff's Department's policy

against officers working on cases for family members.    Montgomery

responded: "If you force me to make a choice, my family comes

first, and the Sheriff's Department can go to hell."   The following

day, Sheriff Brookshire terminated Montgomery's employment with the

Ector County Sheriff's Department.

     Montgomery filed an action against Sheriff Brookshire and

Ector County seeking damages for civil rights violations under 42

U.S.C. § 1983 as a result of his termination, and thereafter he

amended his complaint to include claims for damages under the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq.,

and the First Amendment to the United States Constitution.       The

district court dismissed Montgomery's civil rights claims and


                                2
subsequently issued an order granting summary judgment in favor of

the defendants on the remaining claims.                Montgomery abandoned his

appeal of the First Amendment claim, and thus only appealed the

district court's grant of summary judgment concerning the ADEA.

The district court based its summary judgment on the ADEA claim on

the conclusion that Montgomery came within the "personal staff"

exception to the ADEA.      We find the record insufficient to support

this   determination,     and,    accordingly,         we   reverse   the   summary

judgment on the ADEA claim and remand the cause for further

proceedings.

                                  Discussion

       This Court reviews a grant of summary judgement de novo. Exxon

Corp. v. Burglin, 4 F.3d 1294, 1297 (5th Cir. 1993); Hanks v.

Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.

1992).     Summary judgment is only appropriate when "there is no

genuine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c).                   As

the party moving for summary judgment, Sheriff Brookshire carries

the initial burden of pointing to an absence of evidence to support

the non-movant's case.       Burglin, 4 F.3d at 1297; Celotex Corp. v.

Catrett,    106   S.Ct.   2548,   2553       (1986).        After   consulting   the

applicable substantive law to determine what facts and issues are

material, we review the evidence in a light most favorable to the

non-movant relating to those issues.             Burglin, 4 F.3d at 1297.         If

Montgomery, as the non-moving party, brings forth summary judgment

evidence of specific facts in support of allegations essential to


                                         3
his claim, a genuine issue is presented and summary judgment must

be denied. Id.; Celotex Corp., 106 S.Ct. at 2555.

     The ADEA makes it unlawful to discharge an employee because of

the employee's age.   29 U.S.C. § 623(a)(1).   Section 630(f) of the

ADEA defines "employee" as:

     "[A]n individual employed by any employer except that the
     term 'employee' shall not include [1] any person elected
     to public office in any State or political subdivision of
     any State by the qualified voters thereof, or [2] any
     person chosen by such officer to be on such officer's
     personal staff, or [3] an appointee on the policymaking
     level or an immediate adviser . . .." 29 U.S.C. § 630(f)
     (emphasis added).

The district court concluded that Montgomery could not prevail in

his ADEA claim because he fell within the second exception to the

ADEA definition of "employee," the personal staff exception.     On

this basis, the court granted the defendants' motion for summary

judgment.   We do not reach the same conclusion.

     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.    Monce

v. City of San Diego, 895 F.2d 560, 561 (9th Cir. 1990); E.E.O.C.

v. Reno, 758 F.2d 581, 583-84 & n.7 (11th Cir. 1985); Ingram v.

Dallas County, 688 F.Supp. 1146, 1160 (N.D. Tex. 1988).          We

identified several factors in Teneyuca v. Bexar County, 767 F.2d

148 (5th Cir. 1985), to guide the determination whether an employee

falls within the personal staff exemption and thus is excluded from

the coverage of Title VII:

     "(1) [W]hether 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

                                 4
     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.

As we noted in Teneyuca, "[t]his list of factors is not intended to

be exhaustive" and we are to "look to the 'nature and circumstances

of the employment relationship between the complaining individual

and the elected official.'"   Id. at 151-52.

     Consideration of the six factors is also tempered by the

legislative intent that the exemption be narrowly construed. Clark

v. Tarrant County, 798 F.2d 736, 742 (5th Cir. 1986); Teneyuca, 767

F.2d at 152 ("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").   The determination of employee status in this respect

is ultimately governed by federal rather than state law, and state

law is relevant only insofar as it describes the plaintiff's

position, including his duties and the way he is hired, supervised,

and fired.    Clark, 798 F.2d at 742; see also Caldron v. Martin

County, 639 F.2d 271, 273 (5th Cir. 1981).        Courts generally

concentrate on 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. We have also 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

                                 5
judgment." Id.1

     After considering the Teneyuca factors, the district court

concluded the instant case presented "precisely the same" situation

as Owens v. Rush, 654 F.2d 1370 (10th Cir. 1981).              In Owens, the

Tenth Circuit determined that an undersheriff was on the "personal

staff" of the elected sheriff for the purposes of Title VII because

(1) the sheriff had plenary powers of appointment and removal, (2)

the undersheriff was personally accountable only to the sheriff,

(3) the sheriff was both politically and civilly liable for any

misconduct by the undersheriff in his official duties, (4) the

undersheriff   had   a   very   close       working   relationship   with   the

sheriff, and (5) the undersheriff was second in authority under the

sheriff, acted on the sheriff's behalf when he was not available,

and served as sheriff in the event of a vacancy in that office.

Id. at 1376.   Review of the evidence in the present case reveals

that the position of "deputy sheriff" in the Ector County Sheriff's

Department could hardly be described as "precisely the same" as the

1
     We concluded summary judgment was appropriate in Teneyuca
because (1) several of the factors were statutorily determined;
(2) the actual situation did not appear to differ from that
provided by statute; and (3) the plaintiff wholly failed to meet
the requirements of FED.R.CIV.P. 56(e) in responding to the
defendants' motion for summary judgment. Teneyuca, 767 F.2d at
152-53. Because our conclusion rested so heavily on the
plaintiff's failure to respond, we cautioned that:

     "This is not to say that as a matter of law a plaintiff
     could never demonstrate that material facts exist such
     that summary judgment would be inappropriate in another
     similar case against this or another similar defendant.
     This Court holds only that in this case Teneyuca failed
     to demonstrate the presence of material factual issues
     so as to defeat the defendants' motion for summary
     judgment." Id. at 153.

                                        6
"undersheriff" position in Owens. In fact, the differences between

these two positions compel a different result.

     We recognize that Montgomery's position as deputy sheriff

appears to satisfy the first three factors from Teneyuca.       The

first factor, that Sheriff Brookshire is an elected official with

plenary power to hire and fire deputy sheriffs, is statutorily

determined and undisputed.    TEX. LOC. GOVT. CODE ANN. § 85.003(c)

(West 1988) ("A deputy serves at the pleasure of the sheriff");

Samaniego v. Arguelles, 737 S.W.2d 88, 89 (Tex. App.SQEl Paso 1988,

no writ) ("the sheriff can terminate the deputy's tenure at will").

As to factors two and three, a deputy is personally accountable to

the sheriff because "[t]he sheriff is responsible for the official

acts of his deputies."   Samaniego, 737 S.W.2d at 89; see TEX. LOC.

GOVT. CODE ANN. § 85.003(d).2 Similarly, 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.


2
     Montgomery does not dispute the sheriff's ultimate
responsibility for the actions of the deputies. He challenges
factor three, however, on the basis that he was not personally
accountable only to the sheriff, but rather to several
intermediate supervisors, including Herbert Gibson and Mark
Donaldson. His argument misstates the purpose of factor three.
This factor requires that the plaintiff be personally accountable
only to the particular elected official, as opposed to being
accountable to the county, or a multi-person court, or some form
of board or panel. The existence of intermediaries does not
shield the sheriff from liability for the deputy's official
misconduct, nor does it remove the deputy's personal
accountability to the sheriff. See TEX. LOC. GOVT. CODE ANN. §
85.003 (d),(e). Of course, the layers of supervision separating
Montgomery and Sheriff Brookshire will be very relevant to our
consideration of the fifth Teneyuca factor.

                                 7
     The evidence concerning Teneyuca factors four through six,

however, demonstrates that genuine issues of material fact remain,

and thus disposition by summary judgment is inappropriate at this

point.   Teneyuca's fourth factor requires the Court to consider

whether the sheriff exercises a considerable amount of control over

deputies in Montgomery's position.        Facts asserted in Montgomery's

affidavit indicate that Sheriff Brookshire barely exhibited any

control over Montgomery's day-to-day activities.3             Since Sheriff

Brookshire has offered nothing to rebut this assertion, there at

least exists a disputed issue of fact yet to be resolved.             Factor

five concerns Montgomery'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."                   See

Owens, 654 F.2d at 1375 (quoting 118 CONG. REC. 4492-92 (1972)).

The facts are undisputed that:           (1) the Ector County Sheriff's

Department consisted of 113 officers plus various clerical workers;

(2) the managerial hierarchy, in descending order of authority,

consisted    of   Sheriff   Brookshire   at   the   top,   followed   by   the


3
     By its terms, factor four could be read to inquire whether
the sheriff had the power to exercise a considerable amount of
control over the deputySQwithout regard to whether customarily he
actually utilized this authority on a day-to-day basis. Such a
reading, however, would merely duplicate considerations addressed
in factors one and two. Construing factor four to inquire
whether customarily the sheriff actually exercises control over
one alleged to be a member of his "personal staff" seems more in
line with the narrow construction we are required to give this
exception.

                                     8
captains, inspectors, sergeants, lieutenants, and finally deputy

sheriffs; and (3) as a deputy sheriff, Montgomery occupied the

lowest rung on the chain of command and exercised no supervisory

authority over any other officers.4               In direct contrast to the

"undersheriff" in Owens, deputy sheriffs in Ector County could not

possibly be characterized as the Sheriff's first line advisors.

     The sixth Teneyuca factor, the actual intimacy of the working

relationship between Montgomery and Sheriff Brookshire, strongly

militates against finding that Montgomery fell within the personal

staff exception.       Montgomery asserts that at most he may have

discussed business with Sheriff Brookshire once a month and that

the two did not consult with each other regarding their work.5

Sheriff   Brookshire    does    not   dispute      this     testimony   and   even

concedes that due to the size of the Department there was no actual

intimacy in the working relationship.

     Ultimately,   under       Sheriff       Brookshire's    construction,     his

"personal staff" would encompass all 113 law enforcement officials


4
     Sheriff Brookshire offers no evidence to challenge these
findings, but simply argues that section 85.003 of the Texas
Local Government Code somehow negates the relevance of the fifth
factor because the sheriff is given plenary power over all
deputies regardless of their position within the department. We
reject this argument. The concerns reflected in section 85.003
are aptly addressed in the first three factors of Teneyuca and
are at most marginally relevant to factor five.
5
     This factor demonstrates the fundamental difference between
Owens and the instant case. The plaintiff in Owens admitted that
as undersheriff he had "a very close working relationship with
the sheriff." Owens, 654 F.2d at 1376. The Court recognized
that such an intimate relationship was necessary since the
undersheriff was second in authority to the sheriff and acted on
the sheriff's behalf when he was absent. Id.

                                         9
in the Ector County Sheriff's DepartmentSQthus exempting every

employee except the civilian clerical staff.       Giving the personal

staff   exception   such    a   breadth   is   inconsistent   with   the

congressional intent that the exception be narrowly construed. See

Teneyuca, 767 F.2d at 150.6

     Finally, we recognize that this Court may affirm a grant of

summary judgment on grounds other than those relied upon by the

district court when the record contains an adequate and independent

basis for the result.      Chauvin v. Tandy Corp., 984 F.2d 695, 697

(5th Cir. 1993). While we disagree with the district court's order

granting summary disposition based on the personal staff exception,

some skepticism may be in order regarding this ADEA claim's chance

of success on the merits. To prove age discrimination, a plaintiff

must first establish a prima facie case, generally by showing (1)

that he was within the protected age group, (2) that he was

6
     The broadest application of this exception we have found is
Monce v. City of San Diego, 895 F.2d 560 (9th Cir. 1990). In
Monce, the Ninth Circuit determined that a deputy city attorney
was a member of the City Attorney's "personal staff" because the
deputy "holds office 'at the pleasure of' the City Attorney,"
represented the principal in the eyes of the public, and "was
empowered to exercise the legal authority of that office;" even
though the deputy "did not have an immediate personal
relationship with the City Attorney and was not personally
entrusted with a great deal of responsibility." Id. at 561. Even
Monce does not stretch the exception as far as Brookshire
advocates. So far as is apparent from the Monce opinion, San
Diego's deputy city attorneys may rank just below the City
Attorney. By contrast, the deputy sheriffs in Ector County are
clearly bottom-level employees. In addition, the staff of a city
attorney's office consists of numerous employees other than
deputy city attorneys, including briefing attorneys,
investigators, paralegals, and clerical staff. Other
considerations may arguably also be pertinent in the context of
lawyers in a law office representing an entity such as a city or
county.

                                   10
adversely   affected      by    an    employment      action    (in    this    case,

discharged), (3) that he was replaced by a younger person, and (4)

that he was qualified for the job.              Purcell v. Seguin State Bank

and Trust Co., 999 F.2d 950, 957 (5th Cir. 1993).                 Establishing a

prima   facie   case   essentially      creates    a    presumption         that   the

employer unlawfully discriminated against the employee. St. Mary's

Honor Center v. Hicks, 113 S.Ct. 2741, 2747 (1993).                   The burden of

production then shifts to the defendant to rebut this presumption

by presenting evidence that the employee was discharged for a non-

discriminatory reason.         Purcell, 999 F.2d at 957. If the defendant

presents such evidence, the plaintiff has the burden of persuading

the   factfinder   that    those      reasons   are    pretexts       for   unlawful

discrimination.     Id.; see St. Mary's Honor Center, 113 S.Ct. at

2747 ("although the . . .              presumption shifts the burden of

production to the defendant, '[t]he ultimate burden of persuading

the trier of fact that the defendant intentionally discriminated

against the plaintiff remains at all times with the plaintiff'").

      In the instant case, Montgomery's situation arguably satisfies

the requirements of a prima facie case of age discrimination.7

Sheriff Brookshire, however, appears to have clearly stated a non-

discriminatory     reason       for    the   employment        decision,      namely

Montgomery's outburst in Sheriff Brookshire's office.                  Montgomery,

a former sheriff himself, has admitted that had one of his deputies

7
     Undisputed testimony reveals that Montgomery was fifty-nine
years old when he was terminated, and that he was replaced by a
slightly younger officerSQDon Stout, age fifty-two. There does
not appear to be any evidence, or even allegation, that
Montgomery was generally unqualified for his job.

                                        11
told him the Sheriff's Department could go to hell, he probably

would have fired him as well. This would leave Montgomery the

burden of persuading the trier of fact that Sheriff Brookshire's

claim of insubordination was a mere pretext for intentional age

discrimination.     The present record does not appear to support any

such finding. The only evidence arguably implying a discriminatory

purpose is that Montgomery was within a few months of retirement at

the time of his termination. Had Sheriff Brookshire alleged, as an

alternate basis for granting summary judgment, that Montgomery's

insubordination constituted an adequate and non-discriminatory

ground     for   termination   that    was   not     a   pretext   for   age

discrimination, we may have affirmed the grant of summary judgment

regardless of the reasons relied upon by the district court.

However, Sheriff Brookshire's decision not to advance this defense

in   his   motion   for   summary     judgment     denied   Montgomery   the

opportunity to respond with evidence possibly showing that the

insubordination charge was a pretext for age discrimination.             The

only basis on which Brookshire sought summary judgment was the

personal staff exemption, and that was the sole ground of the

district court's decision; such a ground is wholly unrelated to and

distinct from whether the discharge was age discriminatory.               We

therefore conclude that in this case we should not reach the merits

of any question other than that on which summary judgment was

sought and granted below.      See FDIC v. Laguarta, 939 F.2d 1231,

1240 (5th Cir. 1991).

                               Conclusion


                                      12
     We conclude that under the present record genuine issues of

fact remain unresolved regarding the plaintiff's status as an

employee under the ADEA; accordingly, the district court's grant of

summary judgment is REVERSED, and the cause is REMANDED for further

proceedings.



                                             REVERSED and REMANDED




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