In Teneyuca v. Bexar County, 767 F.2d 148 (5th Cir.1985), the Fifth Circuit set out a number of factors for determining whether a person falls within the personal staff exception to title VII's definition of an employee.
The factors include:
(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 command;
(6) the actual intimacy of the working relationship between the elected official and the person filling the position." ( Teneyuca v. Bexar County, supra, 767 F.2d at p. 151.)
Even though Teneyuca concerns title VII, the court there interpreted the same terminology, "personal staff," and we see no reason why the interpretation of the terminology here should not involve the same factors. We are satisfied the Teneyuca factors adequately reflect the meaning of "personal staff" as set forth in the regulation before us.
Consequently, we find it appropriate to apply the Teneyuca factors to the question of whether appellant was a member of Supervisor Oken's personal staff, contrary to appellant's claim the trial court wrongly applied this case law.
As stated above, the Secretary of Labor has promulgated a regulation concerning the term "personal staff" indicating that the term "generally includes only persons who are under the direct supervision of the selecting elected official and have regular contact with such official.
The term typically does not include individuals who are directly supervised by someone other than the elected official even though they may have been selected by the official." (29 C.F.R. § 553.11(b) (1999).)
This definition is taken into account by the Teneyuca factors which require consideration of whether the elected official has plenary powers of appointment and removal, whether appellant is personally accountable to only that elected official, whether the elected official exercises a considerable amount of control over the position and considering the actual intimacy of the working relationship between appellant and the elected official. ( Teneyuca v. Bexar County, supra, 767 F.2d at p. 151.)
In enunciating the six factors to consider in determining whether a person falls within the personal staff exemption, the court in Teneyuca explained that the factors were not intended to be exhaustive. ( Teneyuca v. Bexar County, supra, 767 F.2d at p. 152.)
Rather, the factors are helpful in determining the nature and circumstances of the employment relationship. (Ibid.) the court went on to explain 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." (Ibid.)
However, summary judgment was proper in that case because the plaintiff failed to establish any material factual conflict sufficient to defeat the summary judgment motion. ( Id. at p. 153.) As appellant points out, the personal staff exemption must be construed narrowly. ( Nichols v. Hurley, supra, 921 F.2d at p. 1104.)