1 United States Court of Appeals,

Fifth Circuit.

No. 93-8838.

Mark S. VOJVODICH, Plaintiff-Appellant,

v.

Ralph LOPEZ, Bexar County Sheriff, Individually and in his

Official Capacity, Defendant-Appellee.

March 30, 1995.

App eal from the United States District Court for the Western

District of Texas.

Before HIGGINBOTHAM, SMITH and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

The plaintiff, Mark S. Vojvodich, brought this action against

Sheriff Ralph Lopez, claiming that he was transferred from his

previous position in the Bexar County Sheriff's Office because of

his political activity and affiliation in violati on of his First

Amendment rights. The district court granted summary judgment in

favor of the sheriff, holding that, because the deputy occupied the

position of a "policymaker," his First Amendment righ ts were

o utweighed by the sheriff's interest in having a loyal employee.

As it applied an incorrect legal stan dard in determining whether

the deputy's rights were infringed, we vacate the district court's

summary judgment, and remand for further proceedings.

I. BACKGROUND

Deputy Mark Vojvodich worked as a Bexar County Deputy Sheriff

for over ten years, during which time he worked his way up the

chain of command. In 1992, he was promoted to lieutenant and1 Under Texas law, some sheriffs' departments, of which BCSO

is one, may establish a civil service system for their employees.

See Tex.Local Gov't Code Ann. § 158.032 (West Supp.1995). The

BCSO elected to do just that. Accordingly, the Bexar County

Civil Service System Commission was created. It adopted rules

regarding various aspects of employment with the BCSO, including

promotions, disciplinary, grievances, and "other matters"

relating to employee advancement and benefits. Id. § 158.035.

These rules announce, inter alia, a county policy to promote

employees and to administer "all other matters affecting [their

employment], including ... transfers [and] demotion[s] ...

without regard to ... political affiliation." Rules of Bexar

County Sheriff's Civil Service Comm'n § 4, at 12 (Mar. 14, 1985,

as revised through May 21, 1992). The rules also restrict

somewhat the political activities of civil service employees.

These rules apply to all department employees except

those positions that the sheriff specifically elects to

exempt from the civil service system. The Bexar County

Sheriff is entitled by law to exempt up to ten positions.

See Tex.Local Gov't Code Ann. § 158.038(b). The defendant,

Sheriff Ralph Lopez, did not choose to exempt Deputy

Vojvodich's position as Narcotics Commander. Accordingly,

Deputy Vojvodich held a "non-exempt" position within the

BCSO; thus, the terms and conditions of his employment were

governed by the rules. Sheriff Lopez does not allege that

Deputy Vojvodich violated any rules, even though the deputy

was active politically.

2 assigned as commander of the Narcotics Unit of the Bexar County

Sheriff's Office (BCSO). The Narcotics Unit is a field command

within the Criminal Investigations Division. 1

Over the years Deputy Vojvodich served as a delegate to the

Republican National Committee and as a member of several republican

organization s, including the Young Republicans Club and the

Republican Mens Club. In 1992, Deputy Vojvodich actively

campaigned for the re-election of then-incumbent republican

sheriff, Harlon Copeland. Deputy Vojvodich served on Sheriff

Copeland's campaign committee, attended political campaign events

and fundraisers, associated with campaig n staff at campaign3

headquarters, donated money to the campaign fund, and urged friends

and associates to vote for Copeland. In the election, Sheriff

Copeland was opposed by Ralph Lopez, a democrat.

That Deputy Vojvodich supported Sheriff Copeland was well

known within the BCSO. In fact, on one occasion a Lopez supporter

within the sheriff's office tried to recruit Vojvodich to support

Lopez's candidacy, but the deputy refused. On election day,

however, Deputy Vojvodich's candidate was defeated. The voters of

Bexar County elected Mr. Lopez sheriff, and he assumed his duties

on January 1, 1993.

As part of the transition process, Sheriff Lopez asked Deputy

Vojvodich to prepare a report on the operations of the Narcotics

Unit. The deputy complied, preparing a forty-page report in which

he proffered several recommendations. Concurrently, Deputy

Vojvodich continued to direct the day-to-day oper ations of the

unit. Vojvodich claims that, although he had opposed the election

of Sheriff Lopez, he continued to serve loyally in his position as

narcotics commander.

Sheriff Lopez claims that upon taking office he evaluated the

performance of all units within the BCSO. This evaluation, Sheriff

Lopez cla ims, revealed that the narcotics unit was not operating

productively. Sheriff Lopez asserts that he and Deputy Vojvodich

disagreed as to the appropriate manner of improving productivity.

When the narcotics unit thereafter failed to demonstrate what the

sheriff beli eved to be satisfactory progress, the sheriff

transferred Deputy Vojvodich to head the Communications/Dispatch2 The former Chief of Criminal Investigations, James De

Lesdernier, affirmed that, based on his law enforcement

experience, "an involuntary transfer from the position of

Narcotics Lieutenant to Communications/Dispatching Lieutenant

would be a punitive transfer to a less desirable, less

prestigious position." Deputy Vojvodich also stated that his new

position offered less job satisfaction, fewer benefits, and that,

in his view, the transfer was a "career setback."

4 Division. The sheriff insists that the position to which he

transferred Vojvodich was equal in prestige to the position

previously held by Vojvodich in the narcotics unit.

Deputy Vojvodich claims that he was unaware that the sheriff

was evaluating the unit. He also disputes the Sheriff's assertion

that the two disa greed on how to improve the operations of the

narcotics unit. Vojvodich claims that at no time while he headed

Narcotics did the Sheriff express dissatisfaction with his

performance or that of the unit. In fact, Vojvodich claims, it was

not until this litigation that he learned that he was transferred

for alleged unsatisfactory performance. Unlike the sheriff, Deputy

Vojvodich sees his transfer as a demotion. 2

Deputy Vojvodich also claims that Sheriff Lopez either failed

or refused to promote him to Night Chief, a position that was

created during the tenure of the previous sheriff. According to

Vojvodich, the Night Chief position was declared by the Civil

Service Commission to be a non-exempt, Captain-level position. As

such, Deputy Vojvodich argues that, according to the civil service

system rules, he should have been promoted to the position because

he was the top candidate on the applicable promotion list. Deputy

Vojvodich was not promoted, however, and on Sheriff Lopez's5

recommendation the position was subsequently abolished.

Vojvodich insists that he was transferred and denied the

promotion to Night Chief solely because he is a republican and

bec ause he supported Lopez's opponent in the general election.

Vojvodich fil ed suit in federal district court alleging that

Sheriff Lopez had violated his state and federal constitutional

rights.

Lopez disputes any ret aliatory motive for his decision to

transfer Deputy Vojvodich to Communications/Dis patch or for his

recommendation to abolish the Night Chief's position. The sheriff

states that he transferred Vojvodich from narcotics because he was

not satisfied with the performance of the Narcotics U nit, he

disagreed with Deputy Vojvodich regarding the organization of the

unit, and he wanted better to utilize Vojvodich's knowledge of and

interest in computers and communications technology. Sheriff Lopez

likewise denies that any political animus m otivated his

recommendation to eliminate the Night Chief position, claiming that

he favored abolishing the position because he believed it would

cause an unnecessary expenditure of funds.

Sheriff Lopez moved for summary judgmen t on three grounds:

that he is entitled to qualified immunity; that Deputy Vojvodich

occupied the position of a "policymaker" and thus could be demoted

because of his political activities; and that Vojvodich failed to

produce evidence th at he was transferred because of activities

protected by the First Amendment. The district court granted the

sheriff's motion based solely on the court's finding that the3 Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th

Cir.1988).

4 Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct.

2548, 2552-53, 91 L.Ed.2d 265 (1986).

5 Walker, 853 F.2d at 358.

6 "Policymaker" has been defined, in part, as a public

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,

6 deputy was a policymaker and thus was subject to the action taken

on the grounds of political activity. After so ruling, the court

dismissed without prejudice the deputy's supplemental state-law

cla ims. Deputy Vojvodich timely appealed the district court's

ruling.

II. DISCUSSION

On this appeal, we review only the district court's summary

dismissal of Deputy Vojvodich's federal-law claims. We review a

summary judgment by examining "the record under the same standards

which guided the district court." 3 Summary judgment is appropriate

when no genuine issue of material fact exists, and the movant is

entitled to judgment as a matter of law. 4 In determining whether

the grant was proper, we view all fact questions in the light most

favorable to the nonmovant. Questions of law are reviewed d e

novo. 5

A.

We may assume without deciding that the district court's

factual finding that Deputy Vojvodich was a "policymaker" was not

c learly erroneous. 6 Even if this finding is supported, however,or policy determinations made by supervisors." Stegmaier v.

Trammell, 597 F.2d 1027, 1035 (5th Cir.1979). "[C]onsideration

should also be given to whether the employee acts as an advisor

or formulates plans for the implementation of broad goals."

Gonzalez v. Benavides, 712 F.2d 142, 149 (5th Cir.1983) (quoting

Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547

(1976)).

7 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980).

8 Branti, 445 U.S. at 518, 100 S.Ct. at 1295.

9 Id.

7 the district court erred by granting summary judgment in favor of

Sheriff Lopez based solely on its finding that Vojvodich had

o ccupied a policymaking position. The district court apparently

believed that Deputy Vojvodich's First Amendment in terests were

necessarily outweighed by Sheriff Lopez's interests as a matter of

law simply because it classified Vojvodich as a policymaker. That

is not the case.

Although the fact that a public employee holds a policymaking

position is relevant to the required balancing of interests, it is

not the ultimate determination. In B ranti v. Finkel, 7 the Supreme

Court expressly rejected the categorical approach used here by the

district court. The B ranti Court explained that "the ultimate

inquiry is not whether the label "policym aker' or "confidential'

fits a particular position; rather, the question is whether the

hiring authority can demonstrate that party affiliation is an

appropriate requirement for effective performance of t he public

office involved." 8 Indeed, the Supreme Court clearly indicated in

Branti that "party affiliation is not necessarily relevant to every

policymaking or confidential position." 910 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

11 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

12 Connick, 461 U.S. at 142, 103 S.Ct. at 1687 (alteration in

original) (quoting Pickering, 391 U.S. at 568, 88 S.Ct. at 1734).

13 Connick, 461 U.S. at 146, 103 S.Ct. at 1690.

14 Coughlin v. Lee, 946 F.2d 1152, 1158 (5th Cir.1991).

15 United States Dep't of Justice v. Federal Labor Relations

Auth., 955 F.2d 998, 1005 (5th Cir.1992).

8 In Connick v. Myers, 10 the Supreme Court again addressed the

First Amendment rights of public employees, and expressly adopted

t he balancing analysis first recognized in P ickering v. Board of

Education. 11 Under Connick and Pickering, the court's task "is to

seek "a balance between the interests of the [employee], as a

citizen, in commenting upon matters of public concern and the

interest of the State, as an employer, in promoting the efficiency

of the public services it performs through its employees.' " 12

To assert the protections of the First Amendment, the

employee must establish, as a threshold matter, that his speech or

activity related to a matter of public concern. 1 3 In the present

case, there can be no q uestion that the claimed activity,

associating with political organiza tions and campaigning for a

political candidate, related to a matter of publ ic concern. 1 4 If

the plaintiff meets this burden, the employer then must establish

that its interest in promoting the efficiency of the services

p rovided by its employees outweighs the employee's interest in

engaging in the protected activity. 15 This analysis in reality is16 Click v. Copeland, 970 F.2d 106, 112 (5th Cir.1992);

Matherne v. Wilson, 851 F.2d 752, 761 (5th Cir.1988); Gonzalez

v. Benavides, 774 F.2d 1295, 1302 (5th Cir.1985), cert. denied,

475 U.S. 1140, 106 S.Ct. 1789, 90 L.Ed.2d 335 (1986).

17 Gonzalez, 774 F.2d at 1302 (citing Connick, 461 U.S. at

152, 103 S.Ct. at 1693); see Kinsey v. Salado Ind. Sch. Dist.,

950 F.2d 988, 994 (5th Cir.) (en banc), cert. denied, --- U.S. --

--, 112 S.Ct. 2275, 119 L.Ed.2d 201 (1992); id. at 1000

(Goldberg, J., dissenting); Matherne, 851 F.2d at 761; McBee v.

Jim Hogg County, Tex., 730 F.2d 1009, 1017 (5th Cir.1984) (en

banc).

18 Kinsey, 950 F.2d at 994 (citing Rutan v. Republican Party

of Ill., 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990));

see also id. at 998 (Higginbotham, J., concurring).

19 Connick, 461 U.S. at 154, 103 S.Ct. at 1694; Pickering,

391 U.S. at 569, 88 S.Ct. at 1735; McBee, 730 F.2d at 1014.

9 a sliding scale or spectrum upon which " "public concern' is

weighed against disruption." 16

We have repeatedly recognized that "a stronger showing of

disruption may be necessary if the employee's speech more

substantially involves matters of public concern." 17 This Court has

also noted that in "cases involving public employees who occupy

policymaker or confidential positions

... the government's

interests more easily outweigh the employee's (as a private

citizen)." 18 These general observations, however, do not negate 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. 19

In evaluating particular cases, this Court has looked to the

factors discussed by the Supreme Court in Connick. Although not

intended to be the exclusive considerations, these factors include

(1) the degree to which the employee's protected activity involved20 See Connick, 461 U.S. at 151-53, 103 S.Ct. at 1692-93;

Kinsey, 950 F.2d at 995-96; McBee, 730 F.2d at 1013.

21 McBee, 730 F.2d at 1013 (citing Connick, 461 U.S. at 150,

103 S.Ct. at 1691).

22 Branti, 445 U.S. at 517, 100 S.Ct. at 1294; see

Soderstrum v. Town of Grand Isle, 925 F.2d 135 (5th Cir.1991)

(police chief's personal secretary served in position of

10 a matter of public concern, and the gravity of that concern, (2)

whether close working relationships are essential to fulfilling the

responsibilities of the public office and the extent to which the

employee's protected activities may have affected those

relations hips, (3) the time, place, and manner of the employee's

activities, and (4) the context in which the employee's activities

were carried out. 20 A proper consideration of these factors allows

a court to balance the plaintiff's interest in the claimed

protected activity agains t the alleged disruption caused by that

activity to the effective and efficient fulfillment of the

government's public responsibilities.

We have no doubt that the government has a "legitimate

interest in maintaining proper discipline in the public service, to

the end that its duties may be discharged with efficiency and

integrity." 21 In addition, we recognize that "party affiliation may

be an acc eptable requirement for some types of governmental

employment. Thus, if an employee's private political beliefs would

interfere with the discharge of his public duties, hi s First

Amendment rights may be required to yield to the State's vital

interest in maintaining governmental effectiveness and

efficiency." 22 Likewise, a private citizen's right to freedom ofconfidence requiring complete loyalty).

23 Kinsey, 950 F.2d at 992.

11 speech, even political speech, "is not absolute, insofar as it

conflicts with his role as a public employee." 23

In the present case, however, Sheriff Lopez has failed to

allege that the deputy's politica l activities had any effect

whatever on BCSO operations. In fact, the sheriff insists that

Deputy Vojvodich's political activities were wholly irrelevant, and

that his employment actions were based entirely on other,

nonpolitic al factors. Because the sheriff has not alleged that

Vojvodich's activities actually or potentially affected the

Sheriff's Office's ability to provide services, there simply is no

countervailing state interest to weigh against the employee's First

Amendment rights. Thus, we cannot affirm the summary judgment in

favor of Sheriff Lopez on this basis.

B.

Sheriff Lopez also moved for summary judgment on the

alternative grounds that (1) Deputy Vojvodich failed t o produce

evidence that his transfer was motivated by his political

affiliation or activities, and (2) the Sheriff was entitled to

qualified immun ity. Because it granted summary judgment based

solely on the finding that Deputy Vojvodich was a policymaker, the

district court did not address either of these alternative grounds.

We may affirm a decision on grounds other than those upon

which the district court ruled, so we next consider each of the

arguments in turn. When we do so in light of the summary judgment12

record before us, we conclude that Sheriff Lopez has not

established entitlement to summary judgment on either basis.

1. CAUSATION

Sheriff Lopez contends that Deputy Vojvodich failed to submit

sufficient evidence to establish that Sheriff Lopez's actions were

motivated by Deputy Vojvodich's protected activities. To be

entitled to summary judgment, Sheriff Lopez must show the absence

of a genui ne issue of material fact on the causation element of

Vojvodich's claim. We hold that Deputy Vojvodich has presented

sufficient evidence on this issue to create a question of fact for

the jury.

To show that his political affiliation or activities motivated

the Sheriff, Vojvodich provides evi dence that (1) he was a

republican, and Sheriff Lopez was a democr at, (2) he actively

campaigned for the incumbent whom Sheriff Lopez eventually

defeated, (3) his support of the incumbent's candidacy was well

known within the BCSO generally, and in particular by Sheriff

Lopez's supporters there, (4) within three and a half months after

Sheriff Lopez assumed office, the Deputy was transferred to a less

desirable position with diminished prestige and career opportunity,

even though his performance evaluations were satisfactory and the

Sheriff had expressed no dissatisfaction with his performance, and

(5) within the same timeframe, other BCSO employees who opposed

Sheriff Lopez's election were terminated. Based on this evidence,

we conclude that a reasonable factfinder could infer that Sheriff

Lopez's transfer of Deputy Vojvodich was substantially motivated by24 Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,

2738, 73 L.Ed.2d 396 (1982).

25 Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789,

1793, 114 L.Ed.2d 277 (1991).

26 970 F.2d 106 (5th Cir.1992).

13 the Deputy's party affiliation or his political activities or both.

2. QUALIFIED IMMUNITY

Finally, we address Sheriff Lopez's contention that he is

entitled to qualified immunity. State officials are protected by

qualified imm unity for alleged constitutional torts if their

conduct does not violate clearly established law effective at the

time of the alleged tort. 24 The first step in this analysis is to

determine whe ther the plaintiff has alleged a violation of a

constitutional right at all. 25 As we have already discussed, absent

a sufficient showing of disruption of the government's ability to

provide services, Vojvodich's activity was constitutionally

protected. In addition, we hold that a reasonable factfinder could

find that political animus motivated the Sheriff's actions. Thus,

Deputy Vojvod ich has sufficiently alleged the violation of a

constitutional right.

The second step in the qualified immunity analysis is

determining whether the constitutional rights allegedly violated

were clearly established at the time the events occurred. In C lick

v. Copeland, 26 we held that by January of 1988 the law was clearly

established that a retaliatory transfer to a less interesting, less

prestigious position could implicate the First Amendment, even if27 Id. at 109-11.

28 Gonzalez, 774 F.2d at 1301-02; McBee, 730 F.2d at 1016.

29 See Kinsey, 950 F.2d at 996; id. at 1000 (Goldberg, J.,

dissenting).

30 Click, 970 F.2d at 112-13 (sheriff's failure to allege

disruption fatal to his claim of qualified immunity).

14 the transfer did not result in a decrease in pay. 27 As far back as

1985, the established law in this circuit has been that a public

employer cannot retaliate against an employee for exp ression

protected by the First Amendment merely because of that employee's

status as a policymaker. 28

In addition, by January 1992 at the latest, the law was

equally clear t hat, regardless of whether an employee is a

policymaker, 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. 29 Therefore,

prior to March 1993, it should have been readily apparent t o a

reasonable sheriff that he could not reta liate against a

policymaking deputy for exercising his Fir s t Amendment rights

unless the deputy's activities had in some way disrup ted the

sheriff's department. Since Sheriff Lopez has alleged no

disruption of governmental f unctions as a result of Vojvodich's

activities, we cannot hold that he is entitled to qualified

immunity in the face of Vojvodich's allegations, and we cannot

affirm the di strict court's summary judgment in favor of the

defendant on this basis. 3015 III. CONCLUSION

For t he reasons given above, the summary judgment of the

district court is VACATED and the case is REMANDED for further

proceedings consistent with this opinion.