Summary Calendar ETTA TAPLIN v. Fred Johnson, etc.

* 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that this opinion should not be published and is not precedent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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United States Court of Appeals
Fifth Circuit
F I L E D
February 11, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60499
Summary Calendar
ETTA TAPLIN
Plaintiff - Appellant
v.
FRED JOHNSON, etc., ET AL
Defendants
FRED JOHNSON in his official capacity as Sheriff of Pike
County, Mississippi; ANNIE JOHNSON
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Mississippi, Jackson
No. 3:02-CV-422-BN
Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Etta Taplin appeals the district court’s
grant of summary judgment to Defendants Fred Johnson, in his

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official capacity as Sheriff of Pike County, Mississippi, and Annie
Johnson on Taplin’s Title VII sexual harassment claim. For the
following reasons, we affirm.
I. BACKGROUND
A. Facts
In 1995, Fred Johnson was elected sheriff of Pike County,
Mississippi. Mississippi law grants sheriffs, such as Johnson, the
power to appoint and to remove all deputy sheriffs. In accordance
with this power, Sheriff Johnson, allegedly with the help of his
wife, Annie Johnson, picked Etta Taplin to work as secretary and
payroll officer in his office. Taplin began work in January 1996
and worked in the Sheriff’s office until her resignation in June
2000.
Over the years, Sheriff Johnson increased Taplin’s work
responsibilities. By the time of her resignation, Taplin was
acting as grant coordinator, office administrator, fiscal officer,
and public relations liaison for the Sheriff’s office. Taplin
worked closely with Sheriff Johnson in performing these duties.
In her role as office administrator, Taplin handled the
department’s personnel files, sat on the department’s grievance
committee, and scheduled training for officers and other employees
in the department. Taplin claims that she was the “top person” in
charge of office operations.
Taplin also had a number of responsibilities regarding fiscal

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matters. She helped the Sheriff prepare his yearly budget,
including determining the appropriate salaries and raises for
members of the Sheriff’s staff. In addition, Taplin often
accompanied Sheriff Johnson to meetings of the Pike County Board of
Supervisors and made comments to the Board concerning the office
budget. These statements sometimes appeared in the local
newspaper. Besides working on the budget for the Sheriff’s office,
Taplin worked with the jail administrator to prepare a preliminary
budget for the jail, which they submitted to Sheriff Johnson.
Furthermore, Taplin handled the payroll for the Sheriff’s office
and reviewed the jail’s payroll.
Taplin was also in charge of public relations for the
Sheriff’s office. With the assistance of the Sheriff Johnson and
his chief deputy, Taplin scheduled drug education seminars for
schools, organized fingerprinting sessions for businesses and
schools, recorded radio commercials, issued press releases, and
coordinated neighborhood watch meetings.
Throughout her tenure, Taplin had a strained relationship with
Sheriff Johnson’s wife. According to Taplin, Ms. Johnson believed
that Taplin was having an affair with her husband. At social
functions, Ms. Johnson gave Taplin the cold shoulder, sometimes not
speaking to her at all. Furthermore, between July 1996 and June
2000, Ms. Johnson was allegedly rude to Taplin on the telephone on
at least four occasions. On September 29, 1997, Ms. Johnson
confronted Taplin at the local courthouse. During this

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confrontation, Ms. Johnson yelled and cursed at Taplin, called her
names, and repeatedly poked her in the chest with her finger.
Taplin also claims that Ms. Johnson secretly met with some of the
employees in the Sheriff’s office in an effort to have Taplin’s
employment terminated.
Taplin repeatedly discussed Ms. Johnson’s behavior with
Sheriff Johnson, but, according to Taplin, Sheriff Johnson did not
take any action. In June 2000, Taplin resigned, allegedly because
of ongoing harassment from Ms. Johnson, and because Sheriff Johnson
failed to take steps to prevent his wife from further harassing
her.
B. Procedural History
In June 2000, Taplin filed a charge of sexual harassment with
the Equal Employment Opportunity Commission (“EEOC”). She received
a right-to-sue letter from the EEOC in March 2002. The following
month, Taplin filed suit against Pike County, Sheriff Johnson in
his individual and official capacities, and Ms. Johnson. Taplin’s
complaint alleges that she was harassed on the basis of her sex, in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-2(a)(1) (2000). According to the complaint, Taplin was
constructively discharged as a result of the hostile work
environment created by Ms. Johnson’s harassment. In addition, the
complaint alleges that Ms. Johnson tortioiusly interfered with
Taplin’s employment relationship with the County, in violation of

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1 By agreement of the parties, Defendants Pike County and
Sheriff Johnson, in his individual capacity, were voluntarily
dismissed from the suit.
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Mississippi law.
Defendants Sheriff Johnson, in his official capacity, and Ms.
Johnson filed a motion for summary judgment on both claims.1 The
district court granted their motion as to Taplin’s Title VII claim,
after finding that Taplin was a member of Sheriff Johnson’s
“personal staff” and, thus, not an “employee” protected by Title
VII. The court, however, denied Defendants’ motion as to Taplin’s
state-law claim for tortious interference with an employment
relationship. Once Taplin’s federal claim was dismissed, however,
the district court declined to exercise supplemental jurisdiction
over Taplin’s state-law claim and, consequently, dismissed the
claim without prejudice. Before this court, Taplin appeals only
the district court’s grant of summary judgment to Defendants on her
Title VII claim.
II. STANDARD OF REVIEW
We review de novo a district court’s decision to grant summary
judgment. Montgomery v. Brookshire, 34 F.3d 291, 294 (5th Cir.
1994). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c). In

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deciding whether summary judgment is appropriate, we view the
evidence in the light most favorable to the non-movant. Teneyuca
v. Bexar County, 767 F.2d 148, 150 (5th Cir. 1985).
III. ANALYSIS
Sheriff Johnson and Ms. Johnson claim that Taplin was a member
of Sheriff Johnson’s “personal staff” and, therefore, that she may
not bring suit against them under Title VII. Title VII excludes
from its protection “any person elected to public office in any
State or political subdivision of any State by the qualified voters
thereof, or any person chosen by such officer to be on such
officer’s personal staff.” 42 U.S.C. § 2000e(f) (2000) (defining
“employee” for purposes of Title VII). The district court agreed
with Defendants that Taplin was a member of Sheriff Johnson’s
personal staff and granted summary judgment to Defendants on this
ground. On appeal, Taplin argues that the district court erred,
because she was not, in fact, a member of Sheriff Johnson’s
personal staff at the time of her resignation.
In Teneyuca, we summarized a non-exhaustive list of factors to
consider in deciding whether an individual qualifies as a member of
an elected official’s personal staff:
(1) whether 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
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

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command, and (6) the actual intimacy of the working
relationship between the elected official and the person
filling the position.
767 F.2d at 151. As we noted in Teneyuca, legislative history of
the personal staff exception indicates that the exception should be
“narrowly construed” so as to only apply to an elected official’s
“first line advisers.” Id. at 152 (citations and internal
quotation marks omitted).
Taplin correctly notes that we have cautioned 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 judgment.” Id. at 152. This does not mean that summary
judgment is never appropriate, however. Indeed, we affirmed a
grant of summary judgment to the defendants in Teneyuca. Id. at
153. After carefully reviewing the record, we find that no genuine
issue of material fact exists regarding any of the six Teneyuca
factors in this case; thus, we conclude that the district court did
not err by granting summary judgment to Defendants.
Taplin concedes that there are no genuine issues of material
fact regarding the first three Teneyuca factors. First, under
Mississippi law, Sheriff Johnson had plenary powers of appointment
and removal with respect to all deputy sheriffs, including Taplin.
MISS. CODE ANN. § 19-25-19 (2003). Second, even though Taplin was
also accountable to the chief deputy, Taplin was ultimately
accountable to Sheriff Johnson, so the second Teneyuca factor has
been satisfied here as well. See Montgomery, 34 F.3d at 295-96 &

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2 In Montgomery, the plaintiff brought suit under the Age
Discrimination in Employment Act, rather than Title VII. The
personal staff exceptions of the two statutes, however, are
identical. Montgomery, 34 F.3d at 294.
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n.2 (holding that the this factor was satisfied even though
plaintiff was personally accountable to several intermediate
supervisors in addition to the sheriff).2 Third, Taplin, as the de
facto public relations liaison, often represented Sheriff Johnson
in the eyes of the public. Thus, the first three factors all point
in the direction of Taplin’s having been a member of Sheriff
Johnson’s personal staff.
Taplin nevertheless contends that genuine issues of material
fact exist as to the remaining three factors, which should preclude
summary judgment in this case. First, she claims that Sheriff
Johnson did not exercise much day-to-day control over her
activities; instead, the Sheriff was concerned mainly with her
finished work product. Second, Taplin argues that she was not next
in command in the office, since the chief deputy was above her in
the command structure. Third, Taplin claims that she did not share
a more intimate working relationship with Sheriff Johnson than any
other staff member shared with him. The evidence provided by
Taplin, however, does not support these assertions.
The fourth factor, whether the elected official exercises a
considerable amount of control over the position, requires us to
consider whether Sheriff Johnson actually exercised control over
Taplin’s day-to-day activities. Montgomery, 34 F.3d at 296 & n.3.

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In her deposition, Taplin conceded that she and the Sheriff “worked
very closely together.” Taplin characterized Sheriff Johnson as
her “boss” and said that Sheriff Johnson decided what her duties
and job tasks were. Taplin further explained that she worked with
Sheriff Johnson in all aspects of her job: She consulted with the
Sheriff regarding grants for the office, office training, the
budget for both the Sheriff’s office and the jail, and public
relations. For example, in her public relations capacity, Taplin
said that she “tried to coordinate everything with the sheriff and
the chief deputy.” From Taplin’s deposition, it is clear that
Sheriff Johnson exercised a considerable amount of control over
Taplin’s day-to-day activities. Thus, the fourth factor weighs in
favor of finding that Taplin was a member of Sheriff Johnson’s
personal staff.
The fifth factor concerns Taplin’s rank within the office’s
command structure. We have explained that “[t]he ‘personal staff’
exception becomes less applicable the lower the particular
employee’s position.” Montgomery, 34 F.3d at 296. The question
here is whether Taplin could be considered one of Sheriff Johnson’s
“first line advisors.” Id. (internal quotation marks omitted).
The evidence in the summary judgment record demonstrates that
Taplin was one of Sheriff Johnson’s first line advisors. She
worked directly with Sheriff Johnson on many important tasks, such
as the budget for the Sheriff’s office and public relations for the
office. Furthermore, in her deposition, Taplin concedes that she

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3 Nevertheless, this did not prevent us from concluding
that the investigator was a member of the district attorney’s
personal staff, and, therefore, not covered by Title VII.
Gunaca, 65 F.3d at 472-73.
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was the “top person” regarding office operations. Although Taplin
was not next in line to the Sheriff in the office (since the chief
deputy was technically above Taplin) this is not determinative. In
Gunaca v. Texas, we said that where three levels of supervisors
separated the investigator from the district attorney, this factor
suggested that the investigator was not a member of the district
attorney’s personal staff. 65 F.3d 467, 472-73 (5th Cir. 1995).3
Here, though, Taplin was only one step removed from the Sheriff in
the command structure, and she often reported directly to the
Sheriff. Therefore, we find that Taplin’s position in the
Sheriff’s office is consistent with the district court’s conclusion
that she was a member of his personal staff.
The sixth factor looks at the actual intimacy of the working
relationship between Sheriff Johnson and Taplin. Montgomery, 34
F.3d at 296. In the past, we have considered such things as
whether the plaintiff and the elected official consulted with one
another regarding their work and whether they had a close working
relationship. Id. at 296-97 & n.5. In her deposition, Taplin
admits that she and Sheriff Johnson often consulted one another on
various matters and that they “worked very closely together.”
Consequently, Sheriff Johnson and Taplin’s working relationship
appears to have been fairly intimate.

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Thus, we find that all six Teneyuca factors point towards
Taplin’s having been a member of Sheriff Johnson’s personal staff.
Nonetheless, Taplin argues that she should not be considered a
member of Sheriff’s Johnson’s personal staff because, if she falls
within this exception to Title VII, then everyone else in the
Sheriff’s office would as well. Taplin emphasizes that our cases
caution against applying the personal staff exception to everyone
in a large office because “[g]iving the personal staff exception
such a breadth is inconsistent with the congressional intent that
the exception be narrowly construed.” Montgomery, 34 F.3d at 297.
Taplin’s argument, however, is unpersuasive. There is no evidence
that others in the office had such a high level of responsibility
with regard to so many important areas, or that others worked as
closely with the Sheriff as Taplin did. To the contrary, Taplin’s
position in the Sheriff’s office appears to have been unique. Our
finding that Taplin was on Sheriff Johnson’s personal staff says
nothing about whether others in the office would be on his personal
staff as well.
For these reasons, we find that the summary judgment evidence
does not raise a genuine issue of material fact as to whether
Taplin was a member of Sheriff Johnson’s personal staff. Because
Taplin qualifies as a member of the Sheriff’s personal staff, she
is not an “employee” for purposes of Title VII. Thus, the district
court did not err in granting summary judgment to Defendants on

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4 Because we affirm the district court’s decision on this
ground, we need not reach Defendants’ other arguments in support
of their motion for summary judgment.
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Taplin’s Title VII claim.4
IV. CONCLUSION
Accordingly, the district court’s grant of summary judgment to
Defendants Sheriff Johnson and Ms. Johnson is AFFIRMED.

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