Full opinion text
ORDER ADOPTING IN PART AND VACATING IN PART REPORT AND RECOMMENDATION DAVID ALAN EZRA, Senior District Judge. Before the Court are three sets of Objections to the Magistrate Judge’s Report and Recommendation (Dkt. # 58), filed by Defendant Dan A. Gattis (“Gattis”) (Dkt. # 60); Defendants Williamson County, Lisa Birkman (“Birkman”), Valerie Covey (“Covey”), Cynthia Long (“Long”), and Ron Morrison (“Morrison”) (Dkt. # 61) (collectively, “Defendants”); and Plaintiff Robert Lloyd (“Lloyd”) (Dkt. # 62). After reviewing the Objections and the supporting and opposing memoranda, the Court ADOPTS IN PART AND VACATES IN PART the Memorandum and Recommendation (Dkt. # 66). BACKGROUND I. Factual Background On February 14, 2013, the sitting Constable for Williamson County’s Precinct 3, Bobby Gutierrez, submitted his resignation to the Williamson County Commissioners’ Court. (“Defs. MSJ,” Dkt. # 40, Ex. A at 3.) Faced with an opening and an election over a year away, the Commissioners invoked their power under Texas Local Government Code § 87.041 to appoint a new constable to serve until the next general election. (“Pl. MSJ,” Dkt. #41, Ex. 1.) On March 6, 2013, the Court, whose five members were County Judge Gattis, Precinct One Commissioner Birkman, Precinct Two Commissioner Long, Precinct Three Commissioner Covey, and Precinct Four Commissioner Morrison, issued a call for applications to fill the vacancy. (Id.) The Court approved Gattis and Covey to review the resumes and select five final candidates for interviews. (Id.) On March 18, 2013, the Court conducted an executive session to privately interview candidates Churchill, Goodrich, Lloyd, Kevin Stofle (“Stofle”), and Wade Fowler (“Fowler”). (Pl. MSJ, Ex. 16; Defs. MSJ, Ex. A at 40.) During the interviews, the candidates received questions on their positions on abortion and same-sex marriage, their political affiliations, the churches that they attended, and their political ideology. (“Lloyd Dep.,” Pl. MSJ, Ex. 2, Ex. B at 164:15-167:5, 170:6-17; “Churchill Dep.” Pl. MSJ, Ex. 3, Ex. B at 106:19-107:20, 112:2-113:18; “Goodrich Dep.,” Pl. MSJ, Ex. 4, Ex. B at 91:18-92:22, 117:1-118:13, 120:22-121:5.) Specifically, Lloyd attests that Birk-man’s first question to him was about his views on abortion, and Lloyd replied that, based on his Catholic faith, he was pro-life. (Lloyd Dep. 164:11-165:15.) He then clarified that that view was somewhat qualified in circumstances of rape, incest, or health of the mother. (Id. at 205:1-206:20.) Lloyd states that Long and Covey frowned and exchanged disapproving glances upon hearing Lloyd’s answer. (Id.) Birkman next asked about his views on same-sex marriage; Lloyd responded that he was heterosexual man who had been married to his wife for over nineteen years; based on his faith, he believed that marriage was between a man and a woman; but, nonetheless, the laws were shifting and the Supreme Court could change at any time. (Id. at 165:20-167:20.) Birkman responded that if he was appointed to the position, he would need to come up with a better answer. (Id.) Lloyd attests that Covey then took over questioning and asked him which church he attended. (Id. at 170:1-173:5.) Lloyd responded that he attended St. Helen’s Catholic. (Id.) Covey asked Lloyd some additional questions, and then Long began to question him. (Id.) Lloyd attests that Long asked him if he was a Republican or a Democrat; Lloyd responded that although he didn’t understand why he was asked the question, he was a Republican. (Id. 174:8-177:17, 185:7-19.) Long then asked him if he was a liberal or conservative, to which he responded that if Republicans are conservative and Democrats are liberal, he answered the question when he stated that he was a Republican. (Id. at 181:1-25, 185:7-19.) Before Lloyd could respond, Birkman pulled up his voting record on her phone and announced that he had voted Republican. (Id. at 189:13-24.) During the interviews, Covey noted with regard to Lloyd, “R — vote,” “prolife — + ~ gay rights — not definitive.” (Pl. MSJ, Ex. 11, Ex. A.) Following their interviews of the candidates, the Commissioners opened their session to the public and formally voted in Stofle as the interim county constable. (Defs. MSJ, Ex. A at 491; Gattis Dep. 209:3-7; Morrison Dep. 66:9-22.) II. Procedural Background On June 17, 2013, Lloyd filed a Complaint in this Court against Birkman, Long, Covey, Morrison, and Gattis, alleging violations of the First and Fourteenth Amendments of the U.S. Constitution and the provisions of the Texas Constitution protecting Equality Rights and Privacy and prohibiting Religious Tests. (Dkt. # 1.) On March 18, 2013, Lloyd amended his Complaint to include Goodrich and Churchill as plaintiffs, Williamson County as a defendant, and claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Texas Commission on Human Rights Act (“TCHRA”), Tex. Labor Code § 21.051. (Dkt. # 11.) On September 22, 2014, Gattis filed his Motion for Summary Judgment (Dkt. # 33); on the same day, the remaining defendants filed their Motion for Summary Judgment (Dkt. # 40). The Motions sought summary judgment on all of Lloyd’s claims. Lloyd filed a Response to both Motions on October 27, 2014 (Dkt. # 48), and Defendants filed Replies on November 14, 2014 (Dkts. ##51, 54, 55). Meanwhile, on September 22, 2014, Lloyd filed a Motion for Partial Summary Judgment, which sought summary judgment on his invasion of privacy claim under the Texas Constitution. (Dkt. #41.) Defendants filed their Response on October 27, 2014 (Dkt. # 47), and Lloyd filed his Reply on November 14, 2014 (Dkt. # 56). On September 22, 2014, U.S. District Judge Yeakel referred the case to Magistrate Judge Lane (Dkt. # 37). On November 20, 2014, the Magistrate Judge issued a Report and Recommendation (Dkt. # 58). On December 4, 2014, all parties submitted Objections to the Report and Recommendation. (Dkts. ## 60, 61, 62.) On December 8, 2014, Judge Yeakel transferred the case to this Court. (Dkt. #66.) The Court scheduled oral argument on the matter for January 22, 2015. (Dkt. # 69.) On January 16, 2015, the parties informed the Court that they had gone into mediation and were pursuing settlement. At the hearing, the parties informed the Court that only two of the three plaintiffs were able to reach settlement, and oral argument went forward on the Motions. On February 17, 2015, the Court received and granted a Motion to Dismiss all claims brought by Churchill and Goodrich, thereby terminating Churchill and Goodrich from the suit and leaving Lloyd the only remaining plaintiff. (Dkts. ## 72, 73.) On February 20, 2015, Birkman, Covey, Long, Morrison, and Williamson County filed a supplement to their Objections to the Report and Recommendation in light of the claims dismissed by Churchill and Goodrich. (Dkt. #74.) On March 2, 2015, Lloyd filed a supplement to his Objections. (Dkt. # 75.) LEGAL STANDARD I. Review of a Magistrate Judge’s Memorandum and Recommendation Any party may contest the Magistrate Judge’s findings by filing written objections within fourteen days of being served with a copy of the Memorandum and Recommendation. 28 U.S.C. § 636(b)(1)(C). The objections must specifically identify those findings or recommendations that the party wishes to have the district court consider. Thomas v. Arn, 474 U.S. 140, 151, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). A district court need not consider “[f]rivolous, conclusive, or general objections.” Battle v. U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir.1987) (quoting Nettles v. Wainwright, 677 F.2d 404, 410 n. 8 (5th Cir.1982), overruled on other grounds by Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir.1996)). The Court must conduct a de novo review of any of the Magistrate Judge’s conclusions to which a party has specifically objected. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those portions of the report or specified' proposed findings or recommendations to which objection is made.”). On the other hand, findings to which no specific objections are made do not require de novo review; the Court need only determine whether the Memorandum and Recommendation is clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.1989). II. Motion for Summary Judgment A movant is entitled to summary judgment upon showing that “there is no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a); see also Meadaa v. K.A.P. Enters., L.L.C., 756 F.3d 875, 880 (5th Cir.2014). A dispute is only genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets this burden, the non-moving party must come forward with specific facts that establish the existence of a genuine issue for trial. Distribuidora Mari Jose, S.A. de C.V. v. Transmaritime, Inc., 738 F.3d 703, 706 (5th Cir.2013) (quoting Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir.2000)). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Hillman v. Loga, 697 F.3d 299, 302 (5th Cir.2012) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). In deciding whether a fact issue has been created, “the court must draw all reasonable inferences in favor of the non-moving party, and it may not make credibility determinations or weigh the evidence.” Kevin M. Ehringer Enters. v. McData Servs. Corp., 646 F.3d 321, 326 (5th Cir.2011) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). However, “[unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.” United States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir.2012) (quoting Brown v. City of Hous., 337 F.3d 539, 541 (5th Cir.2003)). DISCUSSION In his Motion for Summary Judgment, Gattis argues for dismissal of the claims against him in his individual capacity, both because the evidence is insufficient to establish claims against him and because, regardless, he is entitled to a qualified immunity defense. (“Gattis MSJ,” Dkt. # 33 at 6-13.) In their Motion for Summary Judgment, the remaining defendants argue for dismissal of the claims against them in their individual capacities, official capacities, and municipal capacities on various grounds. (Defs. MSJ at 15-39.) In his Motion for Partial Summary Judgment, Lloyd argues for an award of declaratory and injunctive relief against Williamson County on his right to privacy claim under the Texas Constitution. (Pl. MSJ at 8-11.) In his Report and Recommendation, the Magistrate Judge recommended that the Court grant Defendants’ Motions to the extent that the claims against the individual defendants in their official capacities should be dismissed as duplicative and the Title VII and TCHRA claims against the individual defendants should be dismissed because there is no individual liability under those statutes. (“R & R,” Dkt. # 58 at 9.) However,'the Magistrate Judge recommended that Defendants’ Motions be denied in all other respects. (See generally R & R.) Separately, the Magistrate Judge recommended that the Court grant Lloyd’s Motion for Summary Judgment. (Id. at 22-31.) Defendants object to the second and third recommendations on various bases, which the Court will address in turn. (Dkt. #60 at 1-11; Dkt. #61 at 1-19.) Additionally, Defendants object to the Magistrate Judge’s decision not to rale on their evidentiary objections. (Dkt. # 60 at 12; Dkt. # 61 at 20 n. 14.) Although Lloyd agrees with the Magistrate Judge’s ultimate recommendations, he objects to the Magistrate Judge’s decision not to rale on his evidentiary objections. (Dkt. # 62 at 1-3.) Additionally, he makes several objections to preserve issues for appeal, namely that (1) he never pleaded a “duty to intervene” theory, so that claim could not have been dismissed; (2) Defendants should not be permitted to raise arguments regarding issues on which they were compelled to produce discovery and refused to do so; (3) Defendants made no argument regarding Lloyd’s due process rights; and (4) Defendants would not have reached the same decision absent the illegal questions that they used to elicit answers from Lloyd. (Id.) The Court first addresses the evidentia-ry objections raised by Lloyd and Defendants, and then addresses the Defendants’ Motions and Lloyd’s Motion in turn. I. Evidentiary Rulings Because all parties object to the Magistrate Judge’s lack of findings on the evi-dentiary objections, the Court reviews the evidentiary objections de novo. A. Lloyd’s Evidentiary Objections In his Objections, Lloyd objects to the Magistrate Judge’s failure to rale on the evidentiary objections set forth in his Response to Defendants’ Motion for Summary Judgment and Reply to Defendants’ Response to his Motion for Summary Judgment. (Dkt. # 62 at 2.) Specifically, Lloyd raises objections to evidence on the basis of hearsay, undue speculation, and irrelevance. Hearsay is “a statement that[ ] ... the declarant does not make while testifying at the current trial or hearing; and ... a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c). The Court is “not required to accept the nonmovant’s conclusory allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or supported by a mere scintilla of evidence.” Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir.2010). First, in his Response to Defendants’ Motions for Summary Judgment, Lloyd objects to Covey’s statements that the Police Chief told her that he felt good about Stofle’s work as inadmissible hearsay. The Court overrules Lloyd’s objection. The statement is not offered to show that Stofle had good work, but rather is offered to show that Covey preferred Sto-fle because of the recommendation that she received from the Police Chief. Because she was party to the conversation and the statement is not offered to prove the truth of the matters discussed, and instead offered to prove Covey’s personal knowledge about the candidates, the statement is not barred as hearsay. Second, Lloyd objects that Defendants’ deposition testimony about “the way the electorate could vote if someone in a crowd during a campaign asked similar questions to the question at issue and whether voters knew or cared deeply about the answers from a constable” is unduly speculative. (Dkt. # 48 at 30-31; Dkt. # 56 at 10 n. 38.) Apart from this description, Lloyd does not specifically identify the testimony to which he objects. The Court has reviewed Defendants’ factual recitation, which contains the statement, “[i]t is very unlikely that a candidate whose answers are not consistent with the Republican platform could be elected in Williamson County, Precinct Three.” (Defs. MSJ at 8.) In support, Defendants cite to deposition testimony from Commissioner Long and Commissioner Morrison. (Id.) Additionally, the Court notes Defendants’ statement that “[o]n the campaign trial in Williamson County, and in particular in Precinct Three, candidates are consistently asked their views on abortion and gay marriage, their voting record, and/or where they attend church,” which is supported by deposition testimony from each of the County Commissioners. (Id. at 8.) In her deposition, Long testified that the reason she asked the questions at issue in this case was as follows: [I]n regard to the other question of why I asked them if they were going to run as Republican or Democrat, it is — Precinct 3 of Williamson County is a very Republican precinct and the likelihood of somebody running as a Democrat in March of 2014 and winning was very slim. And, as I said earlier, who we appoint, to some extent, is a reflection of who I — you know, of myself and so I want to make sure that somebody is electable. (Long Dep. at 54.) In response to why he thought the questions were reasonable in this context, Morrison testified, “[T]hese questions were asked because they were the questions that [the appointee] would see when [he] run[s] for reelection in that particular precinct.” (Morrison Dep. at 61.) To the extent that the testimony is proffered to demonstrate that the Commissioners believed that the candidates’ positions on abortion and gay marriage, their political affiliation, and their church membership would affect their electability, the evidence is not unduly speculative, and the Court overrules Lloyd’s objection. However, the Court finds that the evidence, standing alone, is insufficient to demonstrate that, as a fact, a candidate’s position on the question at issue would affect their electability. Nonetheless, the Court notes that Defendants have proffered other evidence that could support the fact that the positions on the issues would affect electability, including testimony from the Commissioners regarding their observations of similar questions asked in past elections (Birkman Dep. 77:3-82:25; Gattis Dep. 30:3-25; Long Dep. 17:20-18:11); 2010 primary election statistics showing 82.58% of ballots cast as Republican and 17.42% cast as Democratic (Def. MSJ, Ex. A at 700); and testimony from Commissioner Gattis that the Commissioners, as members of the Republican party, have taken a “firm stance” on abortion and gay marriage (Gattis Dep. 30:10-13). Third, Lloyd objects to the introduction of evidence that Defendants’ lawyer discovered about him during discovery that was not available to Defendants at the time of the interview. (Dkt. # 48 at 44.) Lloyd does not identify or provide citation for this objection. Although the Court agrees that such evidence would likely be irrelevant to the instant case, the Court cannot rule on the objection without knowing the specific evidence to which Lloyd refers. B. Defendants’ Evidentiary Objections In their Reply to Lloyd’s Response to their Motion for Summary Judgment, Defendants make various evidentiary objections, which they re-urge before this Court. (Dkt. # 51 at 10 n. 5; Dkt. # 55, Ex. A; Dkt. # 60 at 12; Dkt. # 61 at 20 n. 14.) The Court addresses each objection in turn. 1.Request to Strike Lloyd’s Factual Appendix Defendants first request that the Court strike Lloyd’s factual appendix to his Motion for Summary Judgment on the basis that it was untimely filed. (Dkt. # 55, Ex. A at 2.) The Court overrules the objection and will, in its discretion, consider the filing. See Frick, 631 F.2d at 40. 2.Texas Municipal Police Association Survey of Stofle Defendants next object to the Texas Municipal Police Association Survey (the “TMPA Survey”) of Kevin Stofle, which is attached as Exhibit 13, Attachment A to Lloyd’s Response, as inadmissible hearsay. (Dkt. # 55, Ex. A at 2.) The TMPA Survey was prepared by the Texas Municipal Police Association for the Georgetown Police Officers Association to determine job satisfaction levels in the Georgetown Police Department and to identify problems within the department. (Dkt. # 48, Ex. 13, Att. A.) Among other things, the TMPA Survey shows high levels of dissatisfaction regarding Stofle’s leadership of the Department. (Id.) If the Survey were offered to prove the truth of the matters asserted therein or, in other words, that the negative reviews of Stofle contained in the report were true, the Survey would constitute hearsay. However, Lloyd proffers the report as evidence of information that certain Commissioners had available at the time they made their appointment decision, not as proof of the matters asserted therein. Testimony from Birkman and Covey corroborates that some of the Commissioners were aware of the TMPA Survey during the appointment process. (Birkman Dep. 122:2-25; Covey Dep. 74:12-22.) Accordingly, for the purposes for which the Survey was proffered, it does not constitute inadmissible hearsay. 3.Public Safety Report Defendants next object to the Public Safety Report, which Lloyd attaches to his Response to the Motions for Summary Judgment has Exhibit 13, Attachment B. (Dkt. # 55, Ex. A. at 2.) The Public Safety Report recounts an investigation into a 2006 vehicle crash and includes statements from the investigating officer that he believed that Stofle took the intoxicated driver, who was Stofle’s friend, home after she crashed her vehicle in 2006. (Dkt. #48, Ex. 13, Att. B.) Stofle was never charged for that conduct or disciplined. (Id.) Like the TMPA Survey, the Public Safety Report was not offered to prove the matters asserted therein, but to demonstrate information that the Commissioners had available at the time of the appointment decision. Again, testimony from some of the Commissioners corroborates the fact that the Public Safety Report was available during the appointment process. (Covey Dep. 133:9-13, 135:15-21; Gattis Dep. 84:1-4, 85:21-24, 86:21-87:8.) Accordingly, for the same reasons discussed above, the Court overrules the objection. 4.Conclusions About Religion Defendants next object to statements in page 23 of Lloyd’s Response that refer to “wide variations among different denominations of Christians,” “wide variations within other religions,” what Christians “might find repugnant,” and the “uneasy coexistence for nearly 2,000 years” amongst Sunnis and Shias. (Dkt. # 55, Ex. A at 2.) Defendants argue that the references are not supported by any record citation, are irrelevant, assume facts not in evidence, and are conclusory. (Id.) The Court agrees, and strikes the factual statements from the Response. 5.Comparisons of Religious Services Defendants next object to a statement in Lloyd’s Response that Commissioners Court members attended “more religiously conservative Protestant services” than Lloyd. (Id.) Defendants argue that there is no showing that Catholic and Episcopalian services are “less religiously conservative” than Birkman’s Methodist Services and object to the statement as vague and ambiguous, assuming facts not in evidence, unsupported by the record, conclusory, vague and ambiguous, and opinion evidence. (Id.) The Court agrees. The record citations supporting the statement establish the particular churches and church denominations of each of the County Commissioners and of Lloyd, but establish nothing as to how conservative each church is. Accordingly, the Court strikes the statement from the Response. 6.“Fervor in Opposing Gay Marriage ” Defendants next object to Lloyd’s statement in his Response that “Defendants did not believe Plaintiffs were able to equal Defendants’ definitive fervor in opposing gay marriage with their answers.” (Id.) Defendants argue that the statement is unsupported with record citation, is conclusory, and consists of opinion. The statement is an opinion characterizing the factual record without citation, and the Court strikes the statement from the Response. 7.Birkman’s Statement Defendants next object to Lloyd’s statement in his Response that “Defendant Birkman actually announced on behalf of the rest of the commissioners that Mr. Lloyd would need to have a better answer about gay marriage to get the appointment for constable.” (Id.) Defendants argue that the reference assumes facts not in evidence and is contrary to the record. In support of the statement, Lloyd cites to his own affidavit, which uses nearly identical language, and interrogatory responses from each of the County Commissioners admitting that at least one Defendant communicated to at least one Plaintiff that he would need a better answer to a question about gay marriage or abortion if he wanted to be county constable. (Morrison Dep. at 53; Long Dep. at 40; Birkman Dep. at 15; Covey Dep. at 35; Gattis Dep. at 9.) Accordingly, the Court finds that the statement is supported by the record and overrules Defendants’ objection. 8.Stofle’s Religion Defendants next object to Lloyd’s statement in his Response that “the three Plaintiffs had different religious views than ... Kevin Stofle,” arguing that there is no admissible evidence on Stofle’s religious beliefs. (Dkt. # 55, Ex. A at 3.) In support, Lloyd cites to deposition testimony from various commissioners, the most relevant of which states that Stofle attended the Celebration Church, which was a Christian Church. (Gattis Dep. 64:15-18.) The Williamson County website corroborates Gattis’s testimony that Stofle is a member of the Celebration Church. Kevin Stofle, Constable Precinct 3, Williamson County, http://www.wilco.org/County Departments/Constables/Precinct3/tabid/ 220/language/en-US/Default.aspx; see also In re Katrina Canal Breaches Consol. Lit., 533 F.Supp.2d 615, 632 (E.D.La.2008) (“The Fifth Circuit has determined that courts may take judicial notice of governmental websites”) (collecting cases). Taken together, this evidence is sufficient to prove Stofle’s church membership, but does not prove anything with regard to Stofle’s religious beliefs. Accordingly, the Court strikes “Stofle” from the statement to which Defendants object. 9. Declaration of Eddie Hurst Defendants next object to Hurst’s affidavit as inadmissible on the basis that comments are inadmissible stray remarks when they were made two or more years after the incident at issue. (Dkt. # 54 at 7; Dkt. # 55, Ex. A at 3.) In support, they cite to the Fifth Circuit’s direct evidence stray remark test, which requires that comments meet the following factors to constitute direct evidence of discrimination the comments must be: “1) related to the protected class of persons of.which the plaintiff is a member; 2) proximate in time to the complained-of adverse employment decision; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.” Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 380 (5th Cir.2010). While Defendants are correct that “standing alone, [the comment would be] insufficient to defeat summary judgment,” id., the evidence here does not stand alone. It is offered as circumstantial evidence to support Lloyd’s pretext showing. Accordingly, to the extent that the stray remarks test is applicable at all, the two-part stray remarks test for circumstantial evidence is applicable, which only requires that the remarks (1) “demonstrate discriminatory animus” and (2) “be made by a person primarily responsible for the challenged employment action[.]” Laxton v. Gap Inc., 333 F.3d 572, 583 (5th Cir.2003). Because proximity in time is not part of the inquiry for remarks offered as circumstantial evidence of pretext, Defendants’ argument that the evidence is inadmissible fails. Defendants also raise various points challenging the credibility of the testimony. (Dkt. # 54 at 6.) However, such arguments are for the factfinder. Accordingly, the Court overrules Defendants’ objections to Hurst’s affidavit. 10. Expert Witness Report Defendants next object to Lloyd’s Expert Witness Report, attached as Exhibit 17 to his Response, as (1) irrelevant and unreliable; (2) an impermissible legal opinion; (3) unhelpful to the trier of fact; (4) not based on facts and data reasonably relied on by experts in the field; (5) containing reasoning and methodology that cannot be properly applied to the facts at issue; (6) not based on sufficient facts or data; (7) not the product of reliable principles and methods; and (8) not based on a showing that the witness applied the principles and methods reliably to the facts of the case. (Dkt. # 55, Ex. A at 3.) Additionally, Defendants argue that the witness’s conclusion that abortion and gay marriage have “nothing to do with the job or duties of constable” is inadmissible because it is contradicted by Lloyd’s testimony. (Id.) The report at issue is an expert report made by Bill Aleshire regarding hiring practices when filling vacancies in county elected positions. The proper vehicle for challenging expert testimony on the bases that Defendants raise is a Dauberb motion. The Court will not entertain a conclusory challenge to expert testimony buried within an exhibit to a Reply to a Motion for Summary Judgment as a Daubert challenge. Accordingly, the Court overrules the objection. Nonetheless, the Court notes that it need not rely on the expert testimony in deciding the Motions for Summary Judgment. 11. General References to Defendants and Questions Defendants next object to statements in pages 34 and 39 of Lloyd’s Response stating that Defendants asked Lloyd the questions at issue, arguing that there is no evidence that all of the Defendants asked the questions. (Dkt. # 55, Ex. A at 3.) Given that the evidence is undisputed that Gattis and Morrison did not ask any of the questions at issue, the Court agrees with Defendants and strikes the statements from the Response. 12. Unreasonable Conduct Finally, Defendants object to a statement on page 58 of Lloyd’s Response that “all of Defendants’ conduct at issue was unreasonable” on the basis that the reference is irrelevant, conclusory, and a legal opinion. (Id.) The full sentence from the Response reads: “All of the Plaintiffs have stated that all of Defendants’ conduct at issue was unreasonable.” (Dkt. # 48 at 58.) In support, Lloyd cites to declarations form Lloyd, Churchill, and Goodrich stating that it was not a reasonable practice to ask the questions at issue. (Id. at n. 132.) Because the statement in the Response is broader than the underlying evidence, the Court agrees with Defendants and strikes the statement. I. Defendants’ Motions for Summary Judgment A. Claims Against Individual Defendants in Official Capacities and Title VII Claims Against Individual Defendants Because no party objects to the Magistrate Judge’s findings regarding the claims against the individual defendants in their official capacities and the Title VII claims against the individual defendants, the Court reviews the findings only to determine if they are clearly erroneous or contrary to law. The Court agrees with the Magistrate Judge that Lloyd cannot sustain claims against the individual defendants in their official capacities when Williamson County has already been named as a party to the suit, as such claims would be duplicative. See Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir.2001). The Court also agrees with the Magistrate Judge that the claims against the individual defendants under Title VII and TCHRA must be dismissed. It is well established that Title VII does not permit plaintiffs to recover against individual employees. 42 U.S.C. § 2000e-2(a)(1) (“It shall be an unlawful employment practice for an employer.... ”); Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir.1999) (citations omitted) (noting that the purpose of this language is to incorporate respondeat superior liability into Title VII). Rather, Title VII liability is only available against employers and employees in their official capacities, as a suit against an employee in his official capacity is effectively a suit against the employer. Harvey v. Blake, 913 F.2d 226, 227-28 (5th Cir.1990) (“Because [defendant’s] liability-under Title VII is premised upon her role as agent of the city, any recovery to be had must be against her in her official, not her individual capacity”); see also Indest, 164 F.3d at 262 (“[A] Title VII suit against an employee is actually a suit against the corporation.”). However, a plaintiff cannot sue both an employer and an employee in his official capacity, since such a posture would subject the company to double liability. Indest, 164 F.3d at 262. Since Williamson County is already named as a defendant, any claims against Defendants in their official capacities would be duplica-tive. Accordingly, the Title VII and TCHRA claims against the individual defendants must be dismissed. B. Title VII and TCHRA Claims Lloyd alleges that Williamson County committed an unlawful employment practice under Title VII and TCHRA by refusing to hire him because of his religious association, moral views, and ethical beliefs. (“Am. Compl.,” Dkt. # 11 ¶¶ 34-38.) Williamson County contends that dismissal of the claims is proper because (1) Lloyd was not discriminated against based on religion; (2) Williamson County is not an “employer” under Title VII in its relationship with county constables; and (3) a Texas county constable is an employee exempt from Title VII. (Defs. MSJ at 17-20.) In his Report and Recommendation, the Magistrate Judge rejected each of Defendants’ arguments, concluding that WiHianu son County was an employer, that the interim constable .position was not exempt from liability by nature of his position, and that there was a question of fact as to whether Lloyd was discriminated on based on religion. (R & R at 10-21.) Accordingly, the Magistrate Judge recommended that the Court deny summary judgment on the Title VII and TCHRA claims. (Id. at 21.) Defendants object that the Magistrate Judge incorrectly ruled that Lloyd’s Title VII and TCHRA claims survive. (Dkt. # 61 at 1-7.) Specifically, Defendants object that (1) the county constable position is exempt from Title VII because there was no employment relationship, Williamson County was not an employer, and the constable position was exempt under the elected official and policymaking exceptions; (2) the questions asked were not religion-related; and (3) there was no evidence that the questions asked caused the ultimate hiring decision. (Id.) Because Defendants object to the Magistrate Judge’s findings regarding the Title VII and TCHRA claims, the Court reviews the findings de novo. As noted in footnote 5, because TCHRA was modeled after federal civil rights law and is intended to coordinate state law with federal law in employment discrimination cases, the Texas Supreme Court interprets TCHRA in light of federal law and the cases interpreting that law. In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 308 (Tex.2010). Accordingly, unless the Texas Supreme Court has held otherwise, courts look equally to federal and state law in evaluating claims under TCHRA. 1. Coverage Under Title VII and TCHRA a. Employer Williamson County first argues that, in its employment relationship with county constables, it is not an “employer” as defined within Title VII or TCHRA because it cannot fire constables: constables must be removed from office by a state district judge following trial by a jury. (Defs. MSJ at 18-19.) Lloyd counters that because Williamson County is a county under the Texas Government Code, which qualifies it for personhood under Title VII and TCHRA, and because it employs over 15 employees, it meets Title VII and TCHRA’s definition of employer. (Dkt. # 48 at 5.) Title VII and TCHRA prohibit “an employer ... [from] failpng] or refusing] to hire ... any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... religion.” 42 U.S.C. § 2000e-2(a)(1); Tex. Labor Code § 21.051. Under Title VII and TCHRA, the definition of employer covers county governments. 42 U.S.C. § 2000e(a) (covering governments); Tex. Labor Code § 21.002(8)(D) (covering counties). It is without question that Williamson County, as a government that employs 15 or more employees, could qualify as an employer for a hypothetical party under Title VII or TCHRA. Whether Williamson County can qualify as Lloyd’s employer, however, is the dispositive issue here. See, e.g., Muhammad v. Dall. Cnty. Comty. Supervision & Corr. Dep’t, 479 F.3d 377, 381 (5th Cir.2007) (noting that the proper inquiry is first whether the defendant meets the statutory definition of an employer and second whether the defendant would be the plaintiffs employer under the hybrid economic realities/common law control test); Oden v. Oktibbeha Cnty., 246 F.3d 458, 465 (5th Cir.2001) (finding that the sheriff, not the county, was the deputy sheriffs employer because the sheriff made all appointment, removal, and compensation decisions regarding deputies, subject to the county’s budget approval). “Federal law controls whether a person is an employer under Title VII, but courts can look to state law to understand the nature of the employment relationship.” Id. at 465. In so doing, courts implement the “hybrid economic realities/common law control test,” which examines the extent of the employer’s control over the plaintiff. Muhammad 479 F.3d at 380 (quoting Deal v. State Farm Cnty. Mut. Ins. Co. of Tex., 5 F.3d 117, 119 (5th Cir.1993)); Guerrero v. Refugio County, 946 S.W.2d 558, 566-69 (Tex.App.1997) (applying the economic realities/common law control test to evaluate employment relationship under the TCHRA). The control part of the test, which is most important, analyzes “whether the alleged employer has the right to hire and fire the employee, the right to supervise the employee, and the right to set the employee’s work schedule.” Deal, 5 F.3d at 119. The economic realities part of the test analyzes “whether the alleged employer paid the employee’s salary,, withheld taxes, provided benefits, and set the terms and conditions of employment.” Id. Two cases on the employment relationship of county and municipal employees are instructive to the instant case. In Moore v. Harris, the court examined whether the County was an employer of a deputy/licensed peace officer, ultimately concluding that there was an employment relationship between the County and the officer. Memorandum and Order, No. Civ. A. H-98-1776, at *4 (S.D.Tex. May 31, 2001). With regard to control, the court found that the County exercised some control over the officer’s employment because the constable was required to obtain authority from the County Commissioners to appoint her and the County’s power to set her salary controlled the financial aspect of her promotions. Id. at *7-8. With regard to economic realities, the court found that the County was responsible for setting deputies’ salaries, paying those salaries, and withholding taxes. Id. at 6. Ultimately, the court concluded that the County was her employer, “given the significant economic realities” of their relationship, and the control that the county could exercise over her employment. Id. at 8; see also Memorandum and Order, Frank v. Harris County, No. Civ.A. H-99-2383, at *6-7 (S.D.Tex. Dec. 19, 2002) (citing Moore and finding that Harris County was the employer of deputy constables). In contrast, in Guerrero v. Refugio County, the court examined whether the County or the state district judges were employers of the county auditor, and ultimately concluded that no employment relationship existed with either. 946 S.W.2d 558, 566-69 (Tex.App.1997). With regard to control, the court found that statutory authority to appoint or remove the county auditor and approve assistant auditors was vested in the district judges, and that consequently the County did not have control over the county auditor. Id. at 567. Nonetheless, the court concluded that the district judges also lacked control over the county auditor because they had no authority to “determine who or what is audited, how the auditing functions are to be handled, or when the audits are to be conducted.” Id. at 568-69. The court concluded that the economic realities were also indeterminate, since the County was responsible for paying the county auditor’s salary and social security taxes, but the district judges set the salary. Id. at 567, 569. Ultimately, the court concluded that neither the County nor the district judges had an employment relationship with the county auditor. Id.; see also Thompson v. City of Austin, 979 S.W.2d 676, 678-79 (Tex.App.1998) (citing Guerrero and finding that the City Council of Austin was not the employer of municipal judges because the Council’s power to appoint and remove judges was limited by statute, municipal judges had independent authority to create procedural rules, and the City had no authority to alter the salary that it paid to judges during a judge’s term). Unlike in Guerrero, the Williamson County Commissioners Court can hire interim county constables, Tex. Loc. Gov’t Code § 87.041(a)(10), approve appointments of any deputy constable or other employee of the constable, Tex. Loc. Gov’t Code § 151.001, and assign responsibilities or duties to the 'constable, beyond those that are statutorily required, Griffin, 266 S.W.3d at 198. As the Southern District of Texas has concluded in a slightly different context, “[t]his is analogous to a manager in a company applying to higher authority in the company for permission to hire an employee.” Moore v. Harris Cnty., No. Civ. A. H-98-1776, at *7 (S.D.Tex. May 31, 2001). Although the County Commissioners have no authority to fire a constable — only a state district judge may remove a constable from office, Tex. Loc. Gov’t Code § 87.012(12)— the County Commissioners nevertheless exercise a significant amount of control over interim county constables. Moreover, just as in Moore, the economic realities here strongly favor a finding of employment relationship. The County Commissioners Court sets the constable’s compensation, expenses, and allowances annually, with very few limitations.Tex. Loc. Gov’t Code § 152.011; Harris Cnty. v. Walsweer, 930 S.W.2d 659, 667 (Tex.App.1996). In light of the significant economic realities and the ability of the Commissioners Court to exercise control over nonelected constables, the Court agrees with the Magistrate Judge that there was an employment relationship sufficient to render the County Lloyd’s employer for Title VII and TCHRA purposes. b. Employee The parties also dispute whether Lloyd is an employee protected by the statute. Williamson County argues that constables are not “employees” as defined within Title VII or TCHRA, both because constables are elected to public office and because they fit within Title VII’s policymaker exception. (Defs. MSJ at 18-19.) Lloyd counters that Title VII and TCHRA only require that covered parties are “individuals,” which he is, and that the policy-making exception is inapplicable because he had not yet been appointed to the policy-making position. (Id. at 6-7.) As Lloyd points out, Title VII and TCHRA prohibit discrimination against “any individual.” However, status as a random individual is insufficient; both statutes require an employment relationship between the defendant and that individual to establish standing. Diggs v. Harris Hosp.—Methodist, Inc., 847 F.2d 270, 271-72 (5th Cir.1988); NME Hosps., 994 S.W.2d at 147 (requiring either a direct or indirect employment relationship between plaintiff and defendant). The law is well-established that this type of employment relationship can include an individual seeking a position, e.g., Johnson v. Louisiana, 851 F.8d 616, 621-22 (5th Cir.2003), but the position must be one that qualifies as an employee under the statute. See Teneyuca v. Bexar Cnty., 767 F.2d 148, 150 (5th Cir.1985) (holding that, in assessing the merits of a Title VII claim of an applicant for the position of Assistant Criminal District Attorney, the plaintiff had to show that the position was one that would qualify as an “employee” under the statutory definition). As discussed above, Title VII defines an employee as “an individual employed by an employer,” with four exceptions: (1) an official elected by qualified voters; (2) a person chosen by an elected officer to be on the officer’s personal staff; (3) an appointee on the policy making level; and (4) an “immediate adviser with respect to the exercise of the constitutional or legal powers of the office.” 42 U.S.C. § 2000e(f). TCHRA defines an employee as “an individual employed by an employer,” with one exception for an individual elected to public office in the state. Tex. Labor Code § 21.002(7). i. Elected Official Exemption under Title VII and TCHRA Williamson County first argues that the county constable position does not qualify as an employee because it fits within Title VII and TCHRA’s exemption for elected public officials. (Defs. MSJ at 24.) The present case presents a difficult fact pattern for the elected official exemption, since it is undisputed that a constable in Williamson County that took office in the traditional manner would not qualify as an employee, pursuant to the elected official exemption. See Tex. Loc. Gov’t Code § 86.002. However, a question arises here because Lloyd applied for — and Stofle ultimately received — the position through appointment, rather than through election. This is an issue of first impression that requires the Court to interpret the meaning of “elected to public office” under both Title VII and TCHRA. The Court does so in turn. (A) Title VII Because of Title VII’s silence in defining the meaning of the employee exemptions, courts have looked to its legislative history in construing the scope of the elected official, personal staff, and policymaker exemptions. E.g., Gregory v. Ashcroft, 501 U.S. 452, 484, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (White, J., concurring in part and dissenting in part) (examining legislative history in evaluating whether state judges fit within the policymaker exception); Teneyuca, 767 F.2d at 152 (examining legislative history in deciding the scope of the personal staff exception (citing Owens v. Rush, 654 F.2d 1370, 1375 (10th Cir.1981))); E.E.O.C. v. New York, 729 F.Supp. 266 (S.D.N.Y.1990) (examining legislative history in deciding whether state judge fell within elected official exemption), reversed 907 F.2d 316 (2d Cir.1990). Accordingly, the Court first examines the legislative history and then turns to the case law on point. As originally passed, Title VII contained no exemptions and defined employee only as “an individual employed by an employer.” Title VII — Equal Employment Opportunity, Pub.L. No. 88-352, § 701(f), 78 Stat. 253. For that reason, in 1972, Senator Ervin introduced an amendment to exempt elected officials and their immediate advisors from the definition of employee. In his view, the amendment was necessary to protect the federal judiciary from encroaching on the people’s ability to elect their own state officers: So Congress now can pass a bill like this one, that says that a Federal judge can remove a Governor from office — this is not what it says expressly, but what it means — or other elected official of a State or county from office, if that Federal judge finds that the voters of that State elected that Governor because they preferred a man of his race or a man of his religion or a man of his national origin or a person of his sex, rather than a person of some other race or religion or national origin or sex.... For that reason, I offer this amendment ... to make certain that Federal judges cannot remove elected State and county officials from office or tell them whom they have to have as their selections to advise them with respect to their constitutional and legal responsibilities. 188 Cong. Rec. 1616. Engaging in the debate on the amendment, Senator Williams similarly emphasized the relationship of the amendment with the people’s right to elect their leaders: I certainly subscribe, and for many reasons, to the exclusion of the elected official at the State and local governing level. His test comes at the polls rather than under a law of this nature. I think that is certainly sufficient test as to propriety in the undertaking of his office, in view of the people that have the opportunity to select him for elected office. Id. at 1631. In debating the amendment, the senators discussed and Senator Ervin repeatedly emphasized its narrowness: I think that the point the Senator is driving at is that this is narrowly drawn to make certain that the only persons covered by the bill at a State or local level are elected officials and the people who advise them as to their constitutional and legal powers____ It would only exclude elected officials and those who give them advice as to how they should carry out their legal and constitutional duties, and not those who actually carry them out as administrative officials. Id. at 1604, 1632 (“Mr. Williams. But it is not the intention of the Senator’s amendment to go to the employees of the personal advisers to the elected officials; is that not correct? Mr. Ervin. This amendment would not do that. That is not its intention. I would like to do that, but I do not think I could persuade the Senate to adopt an exclusion of that kind. It is not its purpose to go to the employees of the personal assistants or to the legal advisers.”). The only other senator who commented on the amendment was Senator Javits, “who said that he believed that elected officials were not encompassed by the bill as originally proposed, but who had no quarrel with making the exemption explicit.” E.E.O.C., 729 F.Supp. at 273. All three ultimately voted in favor of the amendment. Id. Upon passage of the bill, the Conference Report summarized the intent of the amendment as follows: It is the intention of the conferees to exempt elected officials and members of their personal staffs, and persons appointed by such elected officials as ad-visors or to policymaking positions at the highest levels of the departments or agencies of State or local governments, such as cabinet officers, and persons with comparable responsibilities at the local level. It is the conferees intent that this exemption shall be construed narrowly. 118 Cong. Rec. 1834-36. In sum, the legislative history makes clear that the exemption is a narrow one, motivated by the desire to leave elected positions to the discretion of the voters. As the Southern District of New York has summarized: The only legislative history on point thus suggests that the words ‘elected to public office’ refer to someone who holds his present office because the voters elected him to it. It also suggests that if a position is claimed to have both elective and appointive aspects, it should be categorized as ‘elective’ only if an inquiry into whether discrimination motivated the choice would require probing the motives of the electorate, and only if a finding of discrimination would result in the ouster of someone chosen for the position by the electorate. E.E.O.C., 729 F.Supp. at 274. The Southern District of New York applied that interpretation of the legislative history to assess whether a state judge who was initially elected to office was still considered an elected official subject to ADEA’s exemption. E.E.O.C., 907 F.2d at 317. In New York, elected state supreme court justices were subject to mandatory retirement at the age of 70. Id. at 318. However, retired justices could continue to perform the same judicial service as previously performed until age 76 if their physical and mental health was certified by the Administrative Board of the New York Courts every two years. Id. at 319. The plaintiff in the case was a retired justice alleging age discrimination after he was barred from recertification at the age of 76. Id. The district court ultimately concluded that, because the electorate had no voice in the certification process and only the motivations of the Administrative Board members would be relevant in a discrimination analysis, certificated supreme court justices were not elected officials under the ADEA. E.E.O.C., 729 F.Supp. at 275. The Second Circuit ultimately reversed that holding, finding certificated supreme court justices to be elected officials under the law. The court noted that the pool of justices eligible for certification was “derived and limited to those who were elected to the judicial office of justice of the supreme court”; in other words, “[o]nce certificated ... a retired justice continues to serve by virtue of the election that made the justice eligible for certification.” E.E.O.C., 907 F.2d at 321. The court distinguished certification from appointment on that basis: “[wjhile ‘appointment’ ordinarily entails a selection or designation to fill a public office or position ... certification merely allows a retired elected justice to continue to ‘perform the duties of a justice of the supreme court.’ ” Id. Citing to a New York Court of Appeals decision upholding a determination that certificated justices qualified under the elected officials exemption of the ADEA, the Court concluded that “the period of certification is a component of the elected term,” and held that certificated supreme court justices were subject to the ADEA’s exemption. The circumstances at issue here are readily distinguishable. Lloyd is not an employee who has been elected by the voters and now seeks to move into an extension of .that position requiring separate appointment. Lloyd has never been elected. Although he could be elected in the future, the employment decision at the time of his application was completely separate from any election process. Accordingly, the Court holds that Lloyd does not fall within the elected official exemption to Title VII. (B) TCHRA TCHRA is similarly silent in defining who qualifies as an official elected for public office. The language describing the elected official is virtually the same as that in the federal law, except that it specifies that the official must be elected to public office by the qualified voters of the state or its political subdivision. Compare Tex. Labor Code § 21.002(7), with 42 U.S.C. § 2000e(f). “The Legislature modeled the Texas Human Rights Act of federal law with the purpose of executing the policies embodied in Title VII of the federal Civil Rights Act of 1964.” Benavides v. Moore, 848 S.W.2d 190, 193 (Tex.App.1992). Because there is no Texas case law addressing this question, the Court must look to federal case law interpreting Title VII as a guide. Id. Given that federal case law relies on the legislative history of Title VII to interpret the definitions therein, and in light of the Second Circuit’s interpretation of the elected official exemption, the Court holds that Lloyd does not fall within the elected official exemption to TCHRA. ii. Policymaking Exception under Title VII Williamson County next argues that the county constable position does not qualify as an employee under Title VII because it fits within the exemption for employees who are “appointee[s] on the policy making level.” 42 U.S.C. § 2000e(f). At the outset, the Court notes that a parallel exemption does not exist under TCHRA. Title VII provides no definition as to who constitutes as a policymaker, and the Fifth Circuit has not specifically addressed the policymaking exception. Circuits are split as to the breadth of the exemption. The majority of circuits that have addressed the issue favor a narrower reading of “policymaker,” relying on statutory language and congressional intent. Invoking the statutory construction doctrine of nos-citur a sociis, the Second and Tenth circuits found that because each category in the exception — apart from the policymaker category — clearly require a relationship to the elected official, it follows that Congress intended to limit policymakers to those working with or accountable to the elected official. Butler v. N.Y. State Dep’t of Law, 211 F.3d 739, 747 (2d Cir.2000) (citing E.E.O.C. v. Vermont, 904 F.2d 794, 798 (2d Cir.1990)); Anderson v. City of Albuquerque, 690 F.2d 796, 800 (10th Cir.1982). Additionally, the circuits relied on the debate on the Ervin amendment, noting that Senator Ervin characterized the purpose of the amendment as narrowing the definition of employee to exempt elected officials “or any person chosen by such person ,to advise him in respect to the exercise of the constitutional or legal powers of his office,” or, in other words, those “who are in a close personal and immediate relationship with” the elected official. Vermont, 904 F.2d at 798-99; Anderson, 690 F.2d at 801. The circuits also found significant that Congress discussed its intent to ensure that the “adviser” phrase could not be expanded to cover all of the employees of a particular elected office. Vermont, 904 F.2d at 798-99; Anderson, 690 F.2d at 801. Accordingly, the Second Circuit’s test requires that the employee (1) be appointed by an elected official, and (2) the position work closely with or be accountable to the appointing body, see Butler, 211 F.3d at 747-49, and the Tenth Circuit’s test requires that the employee (1) be appointed by an elected official, and (2) act as a policymaker. Crumpacker v. Kan. Dep’t of Human Res., 474 F.3d 747, 752 (10th Cir.2007). The Eighth Circuit’s test is likewise narrow, but does not specifically require that the appointing authority be elected: rather, it looks to (1) whether the official has discretionary, rather than solely administrative, powers, (2) whether he serves at the pleasure of the appointing authority, and (3) whether he formulates policy. Stillians v. State of Iowa, 843 F.2d 276, 278-79 (8th Cir.1988), abrogated on other grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). Finally, the First Circuit also employs a relatively narrow test, although it does not require that the individual work closely with, be accountable to, or serve at the pleasure of the appointing authority or an elected official. The court considered the legislative history of the exemption and found that the Conference Report separates elected officials and their personal staff and advisers from policymaking positions in a significant and definitive way: It is the intention of the conferees to exempt elected officials and members of their personal staffs, and persons appointed by such elected officials as ad-visors or to policymaking positions at the highest levels of the departments or agencies of State or local governments, such as cabinet officers, and persons with comparable responsibilities at the local level. E.E.O.C., 858 F.2d at 55-56 (quoting H.R. Conf. Rep. No. 92-238, at 15-16 (1972), 1972 U.S.C.C.A.N. 2137, 2180). Accordingly, the First Circuit test emphasizes the position of the appointees within the government structure — particularly looking to the employee’s placement on the chain of command — rather than the particular duties of those persons or their obligations to the appointing body. E.E.O.C. v. Massachusetts, 858 F.2d 52, 56 (1st Cir.1988). The Seventh Circuit is something of an outlier, applying the same test as that employed to determine whether employees are exempt from the First Amendment’s prohibition on political hiring and firing. Americanos v. Carter, 74 F.3d 138, 144 (7th Cir.1996). That test analyzes “whether the position held by the individual authorizes, either directly or. indirectly, meaningful input into governmental decision-making on issues where there is room for principled disagreement on goals or their implementation.” Id. at 141 (internal quotation marks omitted). Although the Fifth Circuit has not addressed the policymaker exception specifically, it has addressed the personal staff exception in detail, emphasizing the need to narrowly interpret the provision in light of the exception’s legislative history. Teneyuca, 767 F.2d at 152. In Teneyuca, the court relied on precedent from other circuits to identify factors that courts should consider in assessing the nature and circumstances of the employment relationship, and then went on to emphasize that the consideration of the factors “must be tempered by the legislative history, ... which indicates that the exception is to be narrowly construed.” Id. at 152. The court cited to the joint statement of intent