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 2001-08

Hernandez v. Pulido ( 2001 )


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  •                       IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41232
Summary Calendar
RAUL HERNANDEZ,
Plaintiff-Appellant,
versus
JOSE ELOY PULIDO; HIDALGO COUNTY,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-99-CV-66
--------------------
August 2, 2001
Before DUHÉ, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:1
Raul     Hernandez       appeals    the   granting   of    summary    judgment
dismissing       his    claims    under    the   First   Amendment    of    the   U.S.
Constitution,
    42 U.S.C. § 1983
    , and Texas defamation and wrongful
discharge law against Jose Eloy Pulido, County Judge of Hidalgo
County, and Hidalgo County.               We affirm.
Hernandez’s First Amendment claim is premised on his argument
that       he   was     fired    from     his    position    as    Hidalgo     County
Superintendent of Buildings and Grounds impermissibly for not
supporting politically the newly-elected county judge, Pulido.
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that this opinion should not be published and is not precedent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.
However, the summary judgment evidence showed that Hernandez’s job
was a policy-making one, and, therefore, discharge on the basis of
political   affiliation   was   constitutionally   permissible.    See
Stegmaier v. Trammell,
    597 F.2d 1027
    , 1035 (5th Cir. 1979).       Even
if Hernandez’s discharge for political affiliation reasons was not
constitutionally permissible, both Hidalgo County and Pulido were
immune from suit on this claim.    See Monell v. Department of Social
Servs. of New York,
    436 U.S. 658
    , 694 (1978); Sorenson v. Ferrie,
    134 F.3d 325
    , 330 (5th Cir. 1998).
Pulido and Hidalgo County also are immune from Hernandez’s
suit for defamation.   Defamation is an intentional tort, for which
the Texas Tort Claims Act does not waive immunity.      TEX. CIV. PRAC.
& REM. CODE § 101.057(2) (Vernon 2001); City of Hempstead v. Kmiec,
    902 S.W.2d 118
    , 122 (Tex. App. 1995).      To the extent that Pulido
was sued in his individual capacity, he also is immune.      TEX. CIV.
PRAC. & REM. CODE § 101.106 (Vernon 2001); Dallas County Mental
Health & Mental Retardation v. Bossley,
    968 S.W.2d 339
    , 343-44
(Tex. 1998).
Hernandez’s wrongful discharge claim under Texas state law
also appropriately was dismissed on summary judgment.          Hidalgo
County, not Pulido, was Hernandez’s employer, and Hidalgo County is
sovereignly immune from suit for wrongfully terminating an at-will
employee, even one allegedly terminated for refusing to engage in
illegal acts.   University of Texas Medical Branch at Galveston v.
Hohman,
    6 S.W.3d 767
    , 777 (Tex. App. 2000).
2
Hernandez’s claim that Pulido and Hidalgo County violated the
Texas Whistleblower Act also properly was dismissed on summary
judgment.   That act provides relief only against the government
entity, not Pulido.   TEX. GOV’T CODE § 554.0035.   Hernandez’s claim
against Hidalgo County fails because Hernandez did not demonstrate
that he made a whistleblowing report as required by the act.      See
TEX. GOV’T CODE § 554.002 (Vernon 2001).   The summary judgment of the
district court dismissing all of Hernandez’s claims is AFFIRMED.
3