Vojvodich v. Lopez

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 96-50885 _______________________

MARK S. VOJVODICH,

Plaintiff-Appellee,

versus

RALPH LOPEZ, Bexar County Sheriff, Individually and in Official Capacity,

Defendant-Appellant.

No. 97-50175 _______________________

STEPHEN GARZA,

RALPH LOPEZ, Sheriff; CHAUNCEY SPENCER; BRIAN MENGES, Defendants-Appellants.

_________________________________________________________________

Appeals from the United States District Court for the Western District of Texas (SA-95-CV-455 & SA-95-CV-622) _________________________________________________________________

August 19, 1997 Before JONES, EMILIO M. GARZA and PARKER, Circuit Judges. PER CURIAM:1

In these consolidated appeals, Ralph Lopez, Chauncey

Spencer and Brian Menges appeal the decisions by the magistrate

judge and district court to deny qualified immunity for the

actions that are the subject of this suit. Mark Vojvodich and

Stephen Garza are former employees of the Bexar County sheriff’s

department who filed suit under 42 U.S.C. § 1983 alleging that

they suffered adverse employment actions in violation of their

First Amendment rights. Concluding that the appeal by Lopez,

Chauncey Spencer, and Brian Menges is frivolous, we affirm.

Garza was a deputy with the rank of Captain. Garza alleges

that his transfer within the department, “letters of counseling”

for unacceptable conduct, Order of Suspension, and ultimate

dismissal were in retaliation for his political activities,

including his announcing his candidacy and campaigning for the

sheriff’s office.

Vojvodich was a deputy with the rank of lieutenant.

Vojvodich alleges that Lopez refused to promote him, delayed

payment for excess overtime, assigned him to less prestigious

duty and dismissed him in retaliation for affiliation with

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

2 another political party and support of a competing candidate for

sheriff.

Appellants are not entitled to qualified immunity because

at the time that they took adverse action against Vojvodich and

Garza, the law was clearly established that a sheriff could not

take retaliatory employment action against his deputies based on

political activity or association unless the activity was

sufficiently disruptive. See Click v. Copeland, 970 F.2d 106, 111

(5th Cir. 1992); Vojvodich v. Lopez, 48 F.3d 879 (5th Cir.),

cert. denied, ___ U.S. ___, 116 S.Ct. 169 (1995). Both appellees

raised fact issues as to the political nature of their speech or

activity and as to whether the disruption caused thereby

justified the adverse employment actions against them.

Appellants do not raise any substantial arguments that

distinguish this case from the prior two opinions of this court

that conclusively decided the qualified immunity issue against

him. In fact, these appeals appear calculated to prolong the day

of reckoning at trial, a day we trust the trial court will soon

establish. Because these appeals are frivolous and dilatory,

appellants are hereby put on NOTICE and ordered to SHOW CAUSE as

to why they should not be ordered to pay damages and costs to

appellees under FED. R. APP. PROC. 38. Appellants are ordered to

respond within 30 days of the date of this opinion and order.

3 AFFIRMED; SHOW CAUSE ORDER ISSUED.