     Case: 14-50879          Document: 00513097226          Page: 1    Date Filed: 06/29/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                                United States Court of Appeals
                                                                                         Fifth Circuit

                                          No. 14-50879                                 FILED
                                                                                   June 29, 2015
                                                                                  Lyle W. Cayce
CHARLES M. GROGAN; MARY J. FARLEY,                                                     Clerk

                                                     Plaintiffs - Appellants

v.

EDDY LANGE, in his individual and official capacity as Sheriff of Bell
County; BELL COUNTY, TEXAS,

                                                     Defendants - Appellees



                      Appeal from the United States District Court
                           for the Western District of Texas
                                 USDC No. 1:13-CV-91


Before JONES and HAYNES, Circuit Judges, and CRONE*, District Judge.
PER CURIAM:*
       Plaintiffs Charles Grogan (“Grogan”) and Mary Farley (“Farley”) appeal
the district court’s grant of summary judgment in favor of defendant Eddy
Lange (“Lange”) and Bell County on Plaintiffs’ First Amendment retaliation
claims. Defendants failed to show any form of disruption to the Bell County
Sheriff’s Office’s ability to provide services to the public based on Grogan’s and


       * District   Judge of the Eastern District of Texas, sitting by designation.

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 14-50879
Farley’s political support for the Sheriff’s opponent. Therefore, we REVERSE
the judgment and REMAND for further proceedings.
                               BACKGROUND
      Plaintiffs Grogan and Farley were sheriff’s deputies who served,
respectively, as jail administrator and assistant jail administrator of the Bell
County jail. Upon the resignation of Grogan’s boss, Bob Patterson, in 2011,
Grogan was promoted from the position of Lieutenant and assistant jail
administrator to Major and jail administrator by former Sheriff Dan Smith.
Farley, meanwhile, had served as Lieutenant for fourteen years.
      As jail administrator, Grogan was responsible for overseeing the jail’s
personnel and operations.     He could appoint courtroom bailiffs, transfer
inmates to other facilities, and interface with external vendors. He oversaw a
staff of 200 employees and helped craft the jail budget. However, he could not
terminate an employee without the Sheriff’s approval or sign contracts with
vendors. Additionally, Grogan did not present the jail budget to the county
commissioners; the Sheriff presented the budget.
      Farley’s responsibilities, as Grogan’s deputy, were more limited. She
was responsible for overseeing housing security, scheduling, and jail
standards, and handling inmate grievances. She also oversaw the purchase of
food and supplies. She neither signed contracts nor participated in the budget-
making process.
      In 2012, Eddy Lange, Bob Patterson, and others ran in the 2012
Republican Primary for Sheriff of Bell County. A runoff election ensued, with
Lange and Bob Patterson competing for the Republican nomination.
      In February 2012, Plaintiffs attended a candidate forum sponsored by
the Republican Women’s Association. Lange observed Plaintiffs sitting at a
table with his opponent, Bob Patterson, and inferred that they were supporting
Patterson’s candidacy. Grogan and Farley, in fact, did support Bob Patterson,
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                                     No. 14-50879
but neither Plaintiff contributed money to Bob Patterson’s campaign. Both,
however, posted “Patterson for Sheriff” signs in their homes’ front yards.
Plaintiffs also attended a fundraiser for Patterson hosted by the incumbent
Sheriff. Lange’s supporters monitored the parking lot at the event in order to
record attendees’ license plate numbers. They reported to Lange that Plaintiffs
had attended the fundraiser, information that was confirmed by photos of the
event posted on Facebook.
      Chief Deputy Jack Meredith, a supporter of Lange’s, warned Grogan to
stay away from Patterson.          Despite these warnings, Grogan continued to
display his Bob Patterson yard sign.
      In September 2012, Lange requested a meeting with Grogan after
winning the Republican primary. Lange told Grogan that he had “always
appreciated the work – the way that [he and Grogan] had been able to work
together.”    However, Lange’s “heart just dropped” when he saw Grogan
supporting Bob Patterson. Lange ultimately said to Grogan, “[t]here is no way
[they] are going to be able to remain in those positions.” He gave Grogan an
ultimatum: either accept a demotion from Major to Lieutenant or resign. The
demotion in rank entailed a $30,000 decrease in pay, which was equal to
roughly 30% of Grogan’s salary. A demotion would also require Grogan’s
removal as administrator of the jail; instead, he would be appointed to Farley’s
former position, assistant jail administrator and second-in-command.
      Lange held a similar conversation with Farley, expressing his dismay
with her attendance at the Republican Women’s Association fundraiser for
Patterson. Farley was given the same ultimatum, with the demotion being
from Lieutenant to Sergeant. In response to Farley’s assertion that she could
continue performing her job responsibilities if Lange was Sheriff, he said,
“[t]hat’s just politics.”


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                                No. 14-50879
      On January 2, 2013, after being sworn in as Sheriff, Lange met with both
Grogan and Farley to reiterate the previous ultimata. The plaintiffs opted to
resign rather than take the demotions.
      Lange never asked Grogan or Farley whether either could continue to
perform the duties of jail administrator and assistant administrator,
respectively, under Lange’s supervision. Lange testified that neither Plaintiff
did anything disruptive to the administration of the jail, called him names, or
made derogatory comments, nor were they disrespectful or insubordinate in
any manner. He was also not aware of any campaigning or political activities
by Plaintiffs during work hours. When asked why Lange was unable to trust
Plaintiffs, he responded that they “[s]upported the other side.” Finally, Lange
testified that there was nothing in Plaintiffs’ job descriptions that required
political loyalty as a job duty or requirement. Moreover, Lange testified that
Grogan’s replacement as jail administrator, Nancy Botkin, was never asked
whether she supported Lange.
      Shortly after resigning, Grogan and Farley brought suit against Lange
and Bell County pursuant to 42 U.S.C. § 1983 for violations of their right to
free speech.   Defendants filed a joint consolidated motion for summary
judgment, arguing that Lange had an absolute right to terminate or demote
policymakers based on political affiliation.   The district court granted the
motion for summary judgment, dismissing all claims because of Grogan’s and
Farley’s status as policymakers.    Plaintiffs timely appealed following the
dismissal.
                          STANDARD OF REVIEW
      This court reviews a summary judgment by examining “the record under
the same standards which guided the district court.” Walker v. Sears, Roebuck
& Co., 853 F.2d 355, 358 (5th Cir. 1988). Summary judgment is appropriate
when no genuine issue of material fact exists, and the movant is entitled to
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                                 No. 14-50879
judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322–25,
106 S. Ct. 2548, 2552–53 (1986). In determining whether the grant was proper,
we view all fact questions in the light most favorable to the non-movant.
Questions of law are reviewed de novo. Walker, 853 F.2d at 358.
                                 DISCUSSION
      At the summary judgment stage, the movants must prove that there are
no genuine issues of material fact and that at least one element of plaintiff’s
First Amendment retaliation claim must fail as a matter of law. “As the
district court recognized, a First Amendment retaliation claim in the
employment context has four elements: (1) the plaintiff suffered an adverse
employment decision, (2) the plaintiff’s speech involved a matter of public
concern, (3) the plaintiff’s interest in speaking outweighed the governmental
defendant’s interest in promoting efficiency, and (4) the protected speech
motivated the defendant’s conduct.” Kinney v. Weaver, 367 F.3d 337, 356 (5th
Cir. 2004) (en banc). The defendants concede all but one element, and argue
that the plaintiffs’ First Amendment rights do not outweigh the county’s
interest in promoting the efficient provision of public services.
      The factual scenarios analyzed under the third element of a retaliation
claim “locate themselves on a spectrum.” Brady v. Fort Bend Cnty., 145 F.3d
691, 704–05 (5th Cir. 1998). Some cases are located on an extreme end of the
spectrum where the employee prevails with “little, if any, weighing.” Kinsey v.
Salado Indep. Sch. Dist., 950 F.2d 988, 993 (5th Cir. 1992). One such factual
scenario occurs in political affiliation cases. The Supreme Court has held that
“the First Amendment forbids” firing, threatening to fire, transferring, or
recalling public employees based on political affiliation, “unless party
affiliation is an appropriate requirement for the position involved.” Rutan v.
Republican Party of Ill., 497 U.S. 62, 64, 110 S. Ct. 2729, 2732 (1990). That is
true even for some employees who hold policymaking positions. Vojvodich v.
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                                   No. 14-50879
Lopez, 48 F.3d 879, 884 (5th Cir. 1995). Where the hiring authority has not
alleged that political affiliation is an appropriate requirement for the position,
such cases are on that part of the spectrum where no balancing is needed,
because the employee’s rights are not counterbalanced by public necessity.
Kinsey, 950 F.2d at 993.
      Where the factual scenario does not place a case on an extreme end of
the spectrum, “we have concluded that Connick/Pickering balancing
constitutes   the    appropriate   inquiry”   for   determining     whether    First
Amendment rights overcome the county’s interest in effective provision of
public services. Brady, 145 F.3d at 705. Connick/Pickering balancing includes
a non-exhaustive list of factors: “(1) the degree to which the employee’s activity
involved a matter of public concern; (2) the time, place, and manner of the
employee’s activity; (3) whether close working relationships are essential to
fulfilling the employee’s public responsibilities and the potential effect of the
employee’s activity on those relationships; (4) whether the employee’s activity
may be characterized as hostile, abusive, or insubordinate; (5) whether the
activity impairs discipline by superiors or harmony among coworkers.”
Connick v. Myers, 461 U.S. 138, 151–53, 103 S. Ct. 1684, 1692–93 (1983); Click
v. Copeland, 970 F.2d 106, 112 (5th Cir.1992). In many instances where an
employee is a policymaker, the government’s interests in efficiently providing
services and ensuring unity of policymaking more easily outweigh the
employee’s interests. Brady, 145 F.3d at 708. We reiterate the “oft repeated
warning that because of the wide variety of situations in which this issue might
arise, each case should be considered on its particular facts.” Id. at 885.
      The indispensable predicate to balancing, however, is evidence from the
public employer of actual or incipient disruption to the provision of public
services. Vojvodich, 48 F.3d at 887. Without such evidence, “there simply is
no countervailing state interest to weigh against the employee’s First
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                                  No. 14-50879
Amendment rights.” Id. at 886. We apply these general principles to each
Plaintiff’s claim.
      Turning to Grogan, the district court erred in holding that his First
Amendment retaliation claim failed as a matter of law. The court determined
that Grogan was a policymaker and, based on that status alone, held that the
balancing of interests was in the county’s favor. This was partially erroneous.
We agree that Grogan was a policymaker. His responsibilities clearly involved
discretion and went beyond “ministerial competence,” as he managed a staff of
over 200 and helped craft the jail’s budget.       Wiggins v. Lownders Cnty.,
363 F.3d 387, 390 (5th Cir. 2004).          It is also generally true that the
government’s interests more easily overcome a policymaking employee’s
exercise of First Amendment rights. Brady, 145 F.3d at 708. However, this
preference does not always apply in the political affiliation context because a
policymaker whose role does not necessitate political allegiance can never be
fired or transferred for lacking political affiliation with the elected officials.
Jordan v. Ector Cnty., 516 F.3d 290, 295 (5th Cir. 2008); Kinsey, 950 F.2d at
994. The district court failed to inquire whether Grogan’s role as a policymaker
necessitated an allegiance to Lange.        See Brady, 145 F.3d at 704.     Even
assuming, however, that it was acceptable to require Grogan’s political
allegiance to Lange, the motion for summary judgment should still have been
denied.
      Here, the Defendants have not alleged that Grogan’s support of Bob
Patterson interfered with the office’s ability to provide services to the public.
On the contrary, Lange stated that he appreciated the way he and Grogan had
always been able to work together and that his decision to issue ultimata to
Grogan and Farley was “just politics.” Indeed, Lange was comfortable enough
with Grogan’s presence that he was willing to retain Grogan on his staff, albeit
in a different capacity. Defendants assert that Lange, having won the election,
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has the authority to fire employees for “supporting the other side” and to bring
in his own employees. But “[t]o the victor belong only those spoils that may be
constitutionally obtained.” Rutan, 497 U.S. at 64, 110 S. Ct. 2731. Lange can
only fire employees for political allegiance if the lack of political allegiance
would create a disruption in providing the public with services. Here, the
Defendants have not attempted to establish any interference with the
operations of the sheriff’s office.
      In Vojvodich, a case closely on point involving a sheriff’s deputy, this
court explained the need for a public employer to provide evidence of disruption
in order for a court to weigh a plaintiff’s interests against those of the
defendant. Vojvodich, 48 F.3d at 886. We assumed the plaintiff in Vojvodich
was a policymaker but ultimately held that the defendant’s failure to allege
that the plaintiff’s activities would affect the sheriff’s office’s ability to provide
services deprived the court of a “countervailing state interest to weigh against
the employee’s First Amendment rights.” Vojvodich, 48 F.3d at 886. Summary
judgment for the defendant was reversed.
      The district court should not have granted summary judgment for
Defendants, because Lange’s own testimony essentially disavowed any
disruption of the office’s ability to provide services stemming from Grogan’s
support of his opponent. As such, there are no public interests to weigh against
Grogan’s First Amendment interests, even if Grogan is a policymaker.
Defendants have not established that an element of Grogan’s claim fails as a
matter of law.
      Based on the same assumptions and lack of evidence, Defendants are
also not entitled to summary judgment against Farley. Alternatively, the
district court erred because Farley was not a policymaker and, therefore, could
not be fired solely because of her political allegiance. Rutan, 497 U.S. at 64.
Unlike Grogan, who held the highest jail administrative position, her duties
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                                 No. 14-50879
were limited by her supervisors. Wiggins, 363 F.3d at 390. Her position was
ministerial, as it included executing the policy goals and decisions of others.
      For the foregoing reasons, we REVERSE the judgment and REMAND
for further proceedings.




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