CWA v. Ector Cty Hosp Dist

REVISED DECEMBER 21, 2004 United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT F I L E D
December 1, 2004
No. 03-50230
Charles R. Fulbruge III
Clerk
COMMUNICATION WORKERS OF AMERICA; URBANO HERRERA,
Plaintiffs-Appellees,
versus
ECTOR COUNTY HOSPITAL DISTRICT, doing business as Medical
Center Hospital; ET AL
Defendants
ECTOR COUNTY HOSPITAL DISTRICT, doing business as Medical
Center Hospital
Defendant-Appellant
--------------------
Appeal from the United States District Court
for the Western District of Texas
--------------------
Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.
WIENER, Circuit Judge:
Appellee Urbano Herrera, a carpenter employed by the Ector
County Hospital District (the “Hospital”), was disciplined by the
Hospital after he wore a “Union Yes” lapel button in violation of
the Hospital’s dress code. Herrera brought suit under § 1983,
claiming that the anti-adornment provision of the dress code policy
violated his First Amendment rights. The district court granted a
motion for judgment as a matter of law (“JMOL”) filed jointly by
intervening plaintiff Communication Workers of America (“CWA”, or
the “Union”) and Herrera (collectively, “Plaintiffs”), awarding
monetary damages and injunctive relief. The Hospital now appeals,
advancing numerous errors by the district court, including its
ruling that Herrera’s wearing of the union button was speech on a
matter of public concern, its refusing to submit specified factual
questions to the jury, and its awarding of attorneys’ fees and
litigation costs to Plaintiffs. We affirm.
I. Facts and Proceedings
While employed by the Hospital as a carpenter, Herrera became
a volunteer organizer for the CWA. As his and other CWA members’
organizing efforts progressed, more and more Hospital employees
began to attend weekly union meetings at Herrera’s home.
Eventually, 37 Hospital employees became dues-paying members of the
Union. At one such meeting, Herrera and other Hospital employees
who supported the Union’s organizing efforts received “Union Yes”
lapel buttons from CWA representatives. Herrera and others decided
to wear the buttons during their work shifts at the Hospital in
knowing violation of the Hospital’s dress code, which contains a
specific non-adornment prohibition that forbids the wearing of most
such insignia.
While wearing the “Union Yes” buttons during their work shift,
Herrera and a co-worker were confronted by a supervisor who
informed the pair that the buttons violated the dress code and
asked them to remove the buttons. Herrera refused to remove his
2
button. Subsequently, while Herrera was in the Hospital’s
cafeteria on break, he was confronted by his direct superior, John
Durham, and again instructed to remove the button. Durham did not
back off, and after the tenor of the confrontation elevated,
Herrera eventually told Durham that “I’m not going to take it off.
If you want it off, then you take it off.” When Herrera was then
instructed by Durham to accompany him to his office, Herrera pumped
his fist in the air and shouted “union up!” as he followed Durham
out of the cafeteria.
After Herrera arrived at Durham’s office, he read the dress
code and removed the union button. Herrera thereafter decided to
put the button back on, after he telephoned a CWA representative
and was assured that he could not be required to remove the button.
Following yet another confrontation with Durham, who again insisted
that the button be removed, Herrera was advised that he would be
suspended for three days without pay for his refusal to remove the
button. His disciplinary record was expanded to reflect the
incident. Because of his being disciplined, Herrera received only
a 3% annual raise, rather than the usual 4%.
Herrera filed the instant action pursuant to § 1983, seeking
(1) compensation for lost pay and benefits, (2) an injunction
prohibiting future enforcement by the Hospital of its policy
against the peaceable wearing of pro-union buttons by Herrera and
other union supporters, (3) declaratory relief holding the
Hospital’s ban on the peaceable wearing of pro-union buttons to be
3
unconstitutional, and (4) attorneys’ fees. The Union intervened as
a co-plaintiff. The Hospital filed a Motion to Dismiss and, in the
alternative, a Motion for Summary Judgment. Plaintiffs responded
by filing a Motion for Partial Summary Judgment. In adjudicating
the various summary judgment motions, the district court concluded
that: (1) Herrera’s speech was on a matter of public concern; (2)
this speech was a substantial or motivating factor in the adverse
employment actions he suffered; and (3) the Hospital would not have
taken those adverse actions absent the protected speech.1
The district court also concluded, however, that more evidence
would have to be adduced for the Court to complete the balancing
test required by Pickering v. Board of Education2 and Connick v.
Myers.3 This test is conducted to “arrive at a balance between the
interests of the [employee], as a citizen, in commenting upon
matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it
performs through its employees.”4 The district court stated that
it needed more information before it could determine (1) the extent
1
See Communications Workers of Am. v. Medical Ctr. Hosp., 241
F. Supp. 2d 601 (E.D. La. 2002) (“CWA I”).
2
391 U.S. 563 (1968).
3
461 U.S. 138 (1983).
4
Pickering, 391 U.S. at 568.
4
of Herrera’s interaction with the public during his work hours,5
and (2) the disruptive effect, if any, of his wearing the button on
the Hospital’s operations.
Before the jury trial began, the district court ruled on the
basis of the summary judgment record that Plaintiffs had carried
their burden of establishing a prima facie case of a Constitutional
violation. Therefore, ruled the district court, the Hospital had
the burden of producing evidence on the remaining questions that
had been left unresolved in the summary judgment and remained
necessary for the completion of the Pickering/Connick balancing
test, viz., whether Herrera’s employment involved significant
interaction with the public and whether his actions threatened to
disrupt the Hospital’s operations.
Following completion of the Hospital’s case at trial,
Plaintiffs filed a motion for JMOL, which the court granted.6 The
Hospital timely filed a notice of appeal, contesting virtually
every factual finding, legal conclusion, and procedural ruling made
by the district court.
II. Analysis
A. Standard of Review
5
We have considered this factor in the past, as it must
necessarily influence the determination of how the speech at issue
impacts the public entity’s operation. See, e.g., Smith v. United
States, 502 F.2d 512 (5th Cir. 1974).
6
See Communications Workers of Am. v. Ector County Hosp.
Dist., 241 F. Supp. 2d 617 (W.D. Tex. 2002) (“CWA II”).
5
We review de novo a district court’s ruling on a Rule 50(a)
Motion for JMOL, applying the same standard as the district court.
In so doing, we review the entire record in the light most
favorable to the non-movant and draw all reasonable inferences in
favor of that party.7 A district court “may not grant a Rule 50(a)
motion ‘unless a party has been fully heard on an issue and there
is no legally sufficient evidentiary basis for a reasonable jury to
find for that party on that issue.’”8
We review a grant of injunctive relief for abuse of
discretion; findings of fact for clear error; and conclusions of
law de novo. When fashioning its injunctive relief, a district
court abuses its discretion if it (1) relies on clearly erroneous
factual findings; (2) relies on erroneous conclusions of law; or
(3) misapplies the factual or legal conclusions.9 We review awards
of attorneys fees and costs for abuse of discretion.10
B. Substantive Issues Raised by the Hospital
At the heart of this case lies the question whether the
Hospital’s decision to discipline Herrera violated his rights to
7
See, e.g., Delano-Pyle v. Victoria County, 302 F.3d 567, 572
(5th Cir. 2002).
8
Id. (quoting Ellis v. Weasler Eng’g, Inc., 258 F.3d 326, 337
(5th Cir. 2001)).
9
Peaches Entertainment Corp. v. Entertainment Repertoire
Assocs., Inc., 62 F.3d 690, 693 (5th Cir. 1995).
10
Alameda Films S A De C V v. Authors Rights Restoration
Corp., Inc., 331 F.3d 472, 483 (5th Cir. 2003).
6
freedom of speech or freedom of association guaranteed by the First
Amendment. The Hospital contends that the anti-adornment component
of its dress code is content-neutral and does not implicate free
speech or free association. The anti-adornment policy states that
“ONLY pins representing the professional association and the most
current hospital service award may be worn.”11 Plaintiffs counter
that this policy, as applied by the Hospital, effectively affixes
conditions to public employment that violate the First Amendment
expression rights of Hospital employees such as Herrera and others
similarly situated.
11
The dissent bases much of its argument on the alleged
content-neutrality of the dress code. This argument is belied by
the language of the dress code itself and the hospital’s arguments.
As noted by the dissent in its discussion of Police Department of
City of Chicago v. Mosley, in which the Supreme Court struck down
a city ordinance that prohibited all picketing within 150 feet of
a school except peaceful picketing of a school involved in a labor
dispute, “[t]he central problem with Chicago’s ordinance is that it
describes permissible picketing in terms of its subject matter . .
. The operative distinction is the message on a picket sign.” 408
U.S. 92, 95 (1972). Here, the operative distinction is the message
of the button. The dress code allows Hospital employees to wear
buttons that represent the professional association or the current
Hospital award. In contrast, buttons with any other messages on
them are forbidden by the dress code. Further, the record reflects
that “employees are allowed on certain occasions to wear pins
pertaining to the Great American Smoke-Out Day, blood donations,
and the annual Permian Basin High School versus Odessa High School
football game.” CWA I, 241 F. Supp. 2d at 607. Thus, the
Hospital’s dress code categorizes buttons based on their content,
as did the regulations in Mosley.
Further, as we note below, even the Hospital recognizes that
the dress code affects the content of the buttons when it argues
that even if we were to assume that the subject of the “Union yes”
button is of public concern, the content of this particular button
renders it unprotected. See infra note 31.
7
Although government employees “have not relinquished the First
Amendment rights they would otherwise enjoy as citizens to comment
on matters of public interest,”12 the government as employer is
entitled to manage employees to an extent that includes hiring,
firing, and disciplining them.13 When a public employer adopts a
policy that impinges on the speech of its employees, though, we
apply the Pickering/Connick balancing test, weighing the interests
of the employee, as a citizen, to comment on matters of public
concern against the interests of the government, as an employer, to
promote efficiency in its providing of services.14
In this circuit, we have integrated that balancing test into
a larger four-step analysis: First, the employee must demonstrate
that the speech at issue addressed a matter of public concern. If
it can be characterized as such, we next apply the
Pickering/Connick balancing test, thereafter continuing to the
final two steps only if we conclude that, on balance, the public
employee’s speech rights outweigh the public employer’s interest in
the efficient providing of services. These first two steps are
“legal in nature and are for the court to resolve.”15 The third and
fourth steps are factual in nature, requiring determinations first
12
United States v. Nat’l Treasury Employees Union, 513 U.S.
454, 465 (1995) (citations and internal quotations omitted).
13
See Waters v. Churchill, 511 U.S. 661, 671-74 (1994).
14
Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
15
Branton v. City of Dallas, 272 F.3d 730,739 (5th Cir. 2001).
8
whether the protected speech was a substantial or motivating factor
in the adverse employment decision; and, second, if it was, then
whether the employer would have made the same employment decision
in the absence of the protected speech, a “but for” inquiry.16
1. Deprivation of a Constitutional right in the exercise of an
“official policy.”
As a preliminary matter, we must determine whether the dress
code is an “official” Hospital policy, for local governmental
entities may be held liable under § 1983 only if deprivations of
rights result from implementation of an official policy or custom.17
It is thus error to assess liability to a local governmental unit
for employment and personnel decisions made by officials who lack
final policymaking authority in that area.18 Here, the Hospital
argues in its appellate brief that Durham, the supervisor who
actually disciplined Herrera, has “no policymaking authority, much
less final policymaking authority.” Therefore, urges the Hospital,
“no final policymaking authority was involved in the decision to
suspend Herrera,” so there can be no liability here at all.
The precedent relied on by the Hospital, however, addresses
factual circumstances distinguishably different from those that
frame the instant case. Pembauer v. City of Cincinnati, for
16
Id.
17
See, e.g., Bd. of the County Comm’rs v. Brown, 520 U.S. 397,
403 (1997).
18
See, e.g., City of St. Louis v. Praprotnik, 485 U.S. 112
(1988); Pembaur v. City of Cincinnati, 475 U.S. 469 (1986).
9
example, addresses when “municipal liability may be imposed for a
single decision by municipal policymakers.”19 Similarly, City of
St. Louis v. Praprotnik deals with “defin[ing] the proper legal
standard for determining when isolated decisions by municipal
officials or employees may expose the municipality itself to
liability” under § 1983.20 Those cases, in other words, dealt with
isolated acts that arguably were outside “official” policy; and,
under such circumstances, it is appropriate to determine whether
the state actor involved had “final policymaking authority” that
would expose the municipality to liability.
It is well settled, however, that a municipality may be held
liable if its “official policies cause [its] employees to violate
another person’s constitutional rights.”21 In other words, a
municipality may be held liable if it “cause[s] a constitutional
tort through ‘a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that body’s
officers,’”22 even if that official policy is enforced by someone
who has no final policymaking authority. This last fact does not
change the character of the alleged injury or the policy under
which that injury occurred; it is still an “injury ... inflicted by
19
Pembaur, 475 U.S. at 480 (emphasis added).
20
Praprotnik, 485 U.S. at 114 (emphasis added).
21
Id. at 122.
22
Id. at 121 (quoting Monell v. New York City Dep’t of Soc.
Servs., 436 U.S. 658, 690 (1978)) (emphasis added).
10
a government’s ‘lawmakers or by those whose edicts or acts may
fairly be said to represent official policy,’” for which
“municipalities [can] be held liable.”23 The crucial question,
therefore, is whether the dress code is an official policy of the
Hospital, not whether the Hospital employee who enforced the terms
of that policy had final policymaking authority.
That the Hospital’s dress code is an “official policy” is not
seriously contested. Instead, the Hospital misleadingly focuses on
the decision-making authority of its employee, Durham. As
Plaintiffs correctly point out, though, the dress code policy (1)
was adopted by the Hospital’s Administrator and its Dress Code
Committee, (2) bears a policy number, MCH-1027, and (3) was
officially revised in July 1999. Furthermore, some members of the
Hospital’s Board of Directors —— the very entity identified by the
Hospital as its official, final policymaker —— stated in affidavit
testimony that the dress code was valid and enforceable. And,
finally, if the dress code was not an official policy or was
otherwise invalid, the Hospital had several opportunities to
disavow it during Herrera’s disciplinary process, but never did.
These factors fully support the conclusion that, at the very
least, the “final policymaker” identified by the Hospital (the
Board) delegated the authority to establish the dress code to the
Administrator. As the Supreme Court explained in Pembauer, “if the
23
Praprotnik, 485 U.S. at 121-22 (quoting Monell, 436 U.S. at
694).
11
Board delegated its power to establish final employment policy ...
the [delegate’s] decisions would represent county policy and could
give rise to municipal liability.”24 We conclude that, at a
minimum, such a delegation occurred in the instant case, and that
the Administrator’s establishment and promulgation of the dress
code constitute official Hospital policy.
2. The subject of Herrera’s “speech”: Public concern or personal
issue?
We have never before decided expressly whether pro- or anti-
union lapel pins constitute speech on a matter of public concern,
although we assumed that they do in U.S. Department of Justice,
Immigration and Naturalization Service v. Federal Labor Relations
Authority.25 Noting that we have never explicitly made such a
holding, the Hospital insists that, in wearing the pin, Herrera was
speaking as an employee, not as a citizen, on “matters that address
only his personal interest and personal employment conditions.”
The Hospital’s repeated assertions on this point —— that Herrera’s
speech “only related to the terms and conditions of [Herrera’s]
employment and duties ... [it] related solely to his employment and
not to a matter of concern to the community” —— simply do not hold
water.
First, the speech at issue, constituting as it did a show of
support for the union and serving as it did to inform other
24
Pembaur, 475 U.S. at 484, n.12 (emphasis in original).
25
955 F.2d 998, 1005 (5th Cir. 1992).
12
employees (and those members of the public who saw it) that a union
organizing drive was in progress, indisputably concerned the
employment terms and conditions of all potential union members, not
just Herrera. Furthermore, the goals of union organizing at a
functioning public facility will almost always entail potential
costs and benefits that directly affect and concern the community
at large, not just the employment conditions of that facility’s
workers. A successful union organizing drive can lead to price
fluctuations for services provided by the facility, changes in the
types of services offered by the facility, and political pressures
centered around worker satisfaction.26 Obviously, then, it is
simply incorrect to characterize a “Union Yes” button as addressing
issues that are “solely and inherently personal.”
Second, as the district court noted in its summary judgment
order, courts that have considered this question have typically
held that speech regarding union activities is speech on a matter
of public concern. In Boddie v. City of Columbus, for example, we
recognized the “reality that speech in the context of union
activity will seldom be personal; most often it will be political
26
Although public employees in Texas may not strike or engage
in collective bargaining, public employee unions may act
collectively in the political arena, by raising awareness of
employees’ complaints, increasing voter participation, and
educating members politically. There is record evidence that CWA
members have actively pursued these options, by staging a
demonstration, attending an Ector County Hospital District (“ECHD”)
Board meeting, filing grievance letters on behalf of CWA members,
and, in the case of one member, running for a position on the ECHD
Board.
13
speech.”27 Similarly, the D.C. Circuit has noted that “[t]he urge
to unionize certainly falls within the category of expression that
is ‘fairly considered as relating to any matter of political,
social, or other concern to the community ...’”28 And, in Thornhill
v. Alabama, the Supreme Court stated that “labor relations are not
matters of mere local or private concern.”29 Although the Hospital
cites case law indicating that publicizing a personal employment
grievance is not speech on a matter of public concern,30 Herrera was
not trying to publicize a personal employment grievance: Nothing in
the record of this case would indicate that the “Union Yes” button
was related to anything other than the ongoing organizing effort.
In contrast, the cases relied on by the district court and
cited on appeal by Plaintiffs support the conclusion that speech
regarding general union activities is speech on a matter of public
27
989 F.2d 745, 750 (5th Cir. 1993). This “political” view
of Herrera’s speech is particularly appropriate in the instant
case, as CWA has engaged in political activities on behalf of
Hospital employees. See note 25, supra.
28
American Postal Workers Union, AFL-CIO v. United States
Postal Serv., 830 F.2d 294, 301 (D.C. Cir. 1987) (quoting Connick
v. Myers, 461 U.S. 138, 146 (1983)); see also McGill v. Bd. of
Educ., 602 F.2d 774, 778 (7th Cir. 1979)(“her complaint alleges
that the reason for her transfer was advocacy of a collective
bargaining agreement ... Judge Morgan evidently concluded that this
speech involved a matter of public concern, and we agree.”).
29
310 U.S. 88, 103 (1940).
30
See, e.g., Teague v. City of Flower Mound, 179 F.3d 377, 383
(5th Cir. 1999)(“During all relevant events, Teague and Burkett
were acting in their capacity as employees embroiled in an
employment dispute. Their focus ... was primarily on clearing
their names, not on rooting out police corruption per se.”).
14
concern.31 We easily conclude that Herrera’s wearing of the union
lapel pin is appropriately classified as speech regarding general
union activities, not speech publicizing a personal employment
grievance, and is therefore speech on a matter of public concern.
The Hospital attempts to make a corresponding argument that
the speech at issue here (“Union Yes”) did not sufficiently inform
the public as to be helpful, so that even if the subject of the
speech is of public interest, the content of this particular
communication renders it unprotected.32 The Hospital also contends
that Herrera’s limited contact with the public supports its
argument on this point. We disagree on both contentions. The very
fact that a union organizing drive was occurring at the Hospital is
particularized information about which the public may be
interested, and that information, as well as the viewpoint
championed by those who wear the button, is adequately conveyed by
the words “Union Yes.” As for Herrera’s limited contact with the
public, we have held that speech on a matter of public concern can
be protected, even if that speech occurs only in the workplace.33
31
See note 27, supra, and accompanying text.
32
See Wilson v. City of Littleton, 732 F.2d 765, 768 (10th
Cir. 1984)(discussing Connick v. Myers, 461 U.S. 138 (1983)).
33
See Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir.
2001). In Branton, however, the employee at issue had a duty to
report false testimony of other police officers (the subject of the
speech at issue), which fact clearly influenced the court’s
analysis: “Although Branton’s speech occurred at work, ... Branton
had not only an invitation but a duty to speak.” Id. However, the
Branton panel also noted that “Neither the [First] Amendment itself
15
Moreover, the Hospital undercuts its own argument by acknowledging
that Herrera did come in contact with members of the public (albeit
not in any interactive capacity), such as, for example, at the
cafeteria, in the hallways, and on the stairs.34 Ironically, in
addressing the Pickering/Connick balancing test, the Hospital
inconsistently argues that Herrera had “frequent and direct”
contact with the public. Yet the Hospital conceded in its Trial
Brief that Herrera’s employment “does not entail significant
interaction with the public” (emphasis added).35 For non-spoken
“speech” to be communicated, it is visibility by the public that
satisfies; interaction is not required.
3. The Pickering/Connick balancing test.
nor our decisions indicate that ... freedom [of speech] is lost to
the public employee who arranges to communicate privately with his
employer rather than to spread his views before the public.” Id.,
quoting Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410,
415-16 (1979).
34
Similarly, the dissent undercuts its own argument on this
point and attempts to have it both ways. The dissent argues that
assuming that the speech here is on a matter of public concern, “it
is so only in a very weak and attenuated sense” because “it
addresses no specific matter.” In its discussion of the employer’s
right to project “an appearance to the public of neutrality and
impartiality,” however, the dissent relies heavily on the message
of the button, noting that “any reasonable patient, visitor, or
other member of the public, and any reasonable co-employee, will
understand the button with the written message on it as an attempt
by its wearer to communicate the content of the message . . . That,
of course, is the point of the button.” If the button’s message
addresses “no specific matter,” there is truly no concern that it
would compromise the Hospital’s neutral and impartial image.
35
See note 43, infra, and accompanying text.
16
The thrust of the Hospital’s argument on this second step of
our test is that the dress code policy is “entitled to deference”
because it is “critical to the Hospital’s mission in that it
creates an appearance of impartiality and promotes uniformity,
discipline, and esprit de corps among the hospital’s employees.”36
Although the Hospital lifts this argument almost verbatim from this
circuit’s precedent on non-adornment policies similar to the one
here at issue, that precedent deals in large part with public
employers that are law enforcement agencies or other “paramilitary”
36
Paraphrasing almost verbatim our opinion in United States
Dep’t of Justice v. Federal Labor Relations Authority, another law
enforcement case discussed infra at notes 37-40 and accompanying
text.
The dissent misconstrues the action before us, and, as a
result, relies heavily on cases that are procedurally inapposite to
the suit here. The dissent argues that the matter before us
concerns the constitutionality or unconstitutionality of the
Hospital’s dress code. This, however, misses the mark. What is
before us is a Section 1983 damages action that attacks the
constitutionality of the dress code as it applies to Herrera’s (and
other similarly situated employees’) speech. The dissent’s
reliance on United States Civil Service Commission v. National
Association of Letter Carrriers AFL-CIO, 413 U.S. 548 (1973), and
Broadrick v. Oklahoma, 413 U.S. 601 (1973), is thus misplaced. In
both cases, the plaintiffs challenged the constitutionality of the
federal and state statutes as unconstitutional on their face,
including overbreadth and vagueness challenges. That is not the
issue before us. Indeed, in Broadrick, the Court noted that the
plaintiffs argued that the Oklahoma statute in question applied to
protected political expression such as the wearing of political
buttons. 413 U.S. at 608. The Court rejected this argument,
noting (1) that plaintiffs had not engaged in that type of
activity, and (2) that plaintiffs could not invoke the overbreadth
doctrine “on the ground that it may conceivably be applied
unconstitutionally to others, in other situations not before the
Court.” Id. at 609-10. Thus, because plaintiffs had not engaged in
the wearing of political buttons, they could not assert that the
challenged statutes encompassed such activity. See id. at 610.
17
organizations. Thus, that precedent is inapposite and provides
scant —— if any —— support for the Hospital’s argument.
In Daniels v. City of Arlington,37 for example, we explained
that:
[T]he city ... has the right to promote a disciplined,
identifiable, and impartial police force by maintaining
its police uniform as a symbol of neutral government
authority, free from expressions of personal bent or
bias. The city’s interest in conveying neutral authority
through that uniform far outweighs an officer’s interest
in wearing any non-department-related symbol on it.38
This reasoning rests almost entirely on the key fact that a police
force, as the only arm of municipal government that is authorized
to use force on citizens, must avoid any appearance of favoritism
or bias and —— just as important —— any signal that might cause
confusion as to who is and who is not a law enforcement officer.
This reasoning was also the foundation of a case cited by the
Daniels panel (and misguidedly cited by the Hospital here), U.S.
Department of Justice, Immigration and Naturalization Service v.
Federal Labor Relations Authority.39 There, we explained that “the
border patrol .... is a para-military law enforcement unit, and as
such, has many of the same interests as the military in regulating
37
246 F.3d 500 (5th Cir. 2001).
38
Id. at 504. The Daniels panel had already determined that
the speech at issue there —— a Christian cross worn on the lapel ——
was not speech on a matter of public concern and was therefore not
protected by the First Amendment, so this language is essentially
dicta.
39
955 F.2d 998 (5th Cir. 1992).
18
its employees’ uniforms.”40 Because of this similarity of mission
and means between the military and the INS, our FLRA panel held
that the border patrol’s anti-adornment policy was “similarly
entitled to deference.”41
This reasoning simply does not apply to the instant situation,
despite the Hospital’s close emulation of the language from FLRA in
an apparent effort to bolster its claim that its dress code policy
is entitled to such deference. The paramilitary reasoning of our
FLRA opinion cannot be stretched to apply to the non-medical, non-
administrative, maintenance and clerical staff of a public
hospital. The wearing of a pin by a carpenter and other Integrated
Services employees, who are merely seen by, but do not interact
extensively with, members of the public, cannot be seriously said
to undermine (1) the public’s perception of neutrality and
impartiality among the Hospital’s professional and quasi-
professional medical and administrative staff, or (2) the esprit de
corps among these kinds of employees.42 As Plaintiffs accurately
40
Id. at 1004 (emphasis added).
41
Id.
42
The “esprit de corps”/unity argument rings especially hollow
when viewed in light of the Hospital’s policy of permitting fans of
two local high school football teams (Odessa and Permian Basin) to
wear adornments supporting the schools at the time of their annual
football showdown. This rivalry is famously intense (see H.G.
BISSENGER, FRIDAY NIGHT LIGHTS (1990)), and pins supporting or
denigrating either of the two teams would seem to be just as if not
more divisive than a “Union Yes” button. Indeed, this smacks of
impermissible selectivity based on the content of the speech in
question.
19
note, this case lacks the unique circumstances and requirements of
para-military and law enforcement organizations. Even though the
Hospital’s carpenters, plumbers, janitors, and other maintenance
staff are glimpsed from time to time by patients, family members,
and visitors, they do not interact directly with them; neither are
such employees ever called on to enforce or administer the health
care laws of the state. The Hospital’s efforts to obscure the
clear line between these classes of employees by painting with too
broad a brush is feckless.
The other cases relied on by the Hospital are similarly
distinguishable, and equally inapposite. In Smith v. U.S.,43 for
example, we found no constitutional violation when a psychologist
at a Veteran’s Administration hospital was discharged after he
refused to remove a pin depicting a dove (a ubiquitous peace or
anti-war symbol) superimposed on an American flag. That incident
occurred at the close of the Vietnam War, and the case was decided
on the basis of trial testimony that some of the Vietnam veterans
who were being treated personally by the psychologist were quite
likely to find the pin upsetting, which in turn would be
detrimental to such patients’ welfare.44 This is a circumstance
unique to the treating psychologist/patient relationship and
obviously cannot be analogized to apply to a carpenter who has no
43
502 F.2d 512 (5th Cir. 1974).
44
Id. at 517-18.
20
meaningful contact with patients or their families. Again, the
bright line between medical staff and blue collar maintenance
employees cannot be crossed.
Undaunted, the Hospital nevertheless contends that “Herrera
had frequent and direct contact with the public,” and furthermore
that if we were to accept that he did not have such contact, then
his speech could not have been on a matter of public concern. In
so doing, the Hospital attempts to manufacture a Catch-22 for the
Plaintiffs by arguing that they are “attempting to have it both
ways” by arguing that Herrera had enough public contact to make his
speech on a matter of “public concern,” but not enough public
contact for purposes of the Pickering/Connick balancing test. On
the contrary, it is obviously the Hospital that is trying to have
it both ways. In its argument on the “public concern” element, the
Hospital contends that “Herrera admits he did not have any
significant contact with the public” (emphasis added); a point
actually conceded by the Hospital in its original Answer when it
admitted that Herrera’s “position of employment with Defendant
Hospital does not entail significant interaction with the public”
(emphasis added). As shall be seen, the difference between contact
and interaction is telling. The district court declined to give
conclusive effect to that admission because all the parties “seemed
to have overlooked [it]” in their arguments before that court,45
45
CWA II, 241 F. Supp. 2d 617, 626 (W. D. Tex. 2002). The
district court based this decision on White v. ARCO/Polymers, Inc.,
21
which nevertheless observed that the admission was “highly
indicative of the Defendants’ stance on this issue before it became
critical to the case.”46 The definitive aspect of the Hospital’s
schizophrenic posturing here is its conflating of two very
different aspects of Herrera’s presence, vis-à-vis the public: (1)
“contact” that is passive visibility that facilitates “speech”, and
(2) direct “interaction” which, if present, might affect the
public’s perception of his employer’s neutrality.
In stark contrast to the Hospital’s flawed comparison,
Plaintiffs’ position is neither inconsistent nor internally
contradictory. They accurately assert that “Herrera’s position
does not entail significant interaction with the public. ...
[Herrera] worked in patient rooms that had been vacated for repairs
or renovation. ... [Herrera] only encountered the public in
passing, such as brief encounters in the hallways, elevators, or
cafeteria” (emphasis added). Such contacts, however fleeting, are
quite sufficient for Herrera’s lapel pin to alert the public to the
fact that a labor organizing drive is ongoing, but fall well short
of the active, functional interaction (such as that between law
enforcement officers and the public or psychiatrists and their
patients) needed to affect negatively the Hospital’s medical or
720 F.2d 1391, 1396 (5th Cir. 1983), which states that “fail[ure]
to contend that [a party’s] admissions barred []subsequent
assertion of the contrary position ... effectively waived the
argument that the issue was irreversibly settled.”
46
CWA II, 241 F. Supp. 2d at 626.
22
administrative operations. Passive visibility and active
interaction weigh quite differently on the Pickering/Connick
balancing beam. The nature of Herrera’s performance of his
employment as a carpenter, with the frequency of its visibility and
the infrequency of its interaction with the public, is such that
the Hospital has failed to demonstrate how suppressing the lapel-
pin speech of personnel like Herrera was necessary for the
efficient providing of Hospital services.
The Hospital also argues that Herrera’s speech had the effect
of workplace disruption, which is a factor to be considered in
conducting the balancing test. The Hospital would emphasize the
anecdotal incident when Durham instructed Herrera to remove the
button and Herrera responded with “If you want it off, then you
take it off.”47 On this point, the district court ruled:
Just as other courts have found that ‘refusing to obey an
order that implicates an employee’s First Amendment
rights is not a sufficient reason for disciplining the
employee,’ this Court holds that an employer’s insistence
upon enforcing an unconstitutional policy cannot create
the very disruption the policy purports to prevent.48
The district court also recognized that the button-wearing speech
at issue here caused no workplace disruption, either in the Durham
47
Appellant also briefly argues that this statement, as well
as Herrera’s shouting “Union up” as he was escorted from the
cafeteria, amount to an attempt by Herrera to elevate his personal
employment matter into a “cause celebre.” This is unpersuasive
because the button at issue here does not implicate any personal
employment matter.
48
CWA II, 241 F. Supp. 2d at 631.
23
incident or on a prior occasion when approximately 30 Hospital
employees wore the buttons.49 Finally, as the district court
observed, there was no evidence that Herrera’s productivity
suffered as a result of wearing the button; quite to the contrary,
he received consistently positive performance evaluations, with the
lone exception of the dress code violation.50
The instant situation differs markedly from, for example,
Connick v. Myers, in which the speech at issue involved an
assistant district attorney’s distribution during work hours of a
questionnaire that was critical of that professional’s
supervisors.51 Here, as emphasized by the district court, Herrera’s
mute lapel-pin speech was not a public criticism of a close
supervisor or a challenge to the Hospital’s authority; neither did
it pose any threat whatsoever to the efficient performing of the
Hospital’s medical or administrative functions.52 Obviously, the
particular work environment in Connick was a key factor. The
Supreme Court emphasized that maintaining harmonious relationships
is essential to efficiency in a district attorney’s office, which
is, after all, tantamount to a government law firm. A custodial or
49
See CWA I, 241 F. Supp. 2d 601, 613 (E.D. La. 2002).
50
See Id.; CWA II, 241 F. Supp. 2d at 630-31.
51
461 U.S. 138, 153 (1983).
52
CWA II, 241 F. Supp. 2d at 631. As the district court
explained, these are all types of speech that have been permissibly
infringed by public employers under the Pickering/Connick test, but
Herrera’s speech falls into none of these categories.
24
maintenance worker, such as a carpenter, wearing a pro-union button
during his work shift cannot be analogized to a doctor, nurse,
technician, or administrator employed by a medical center, just as
such a maintenance worker cannot be analogized to an assistant
district attorney or deputy sheriff. In sum, Herrera’s speech on
a matter of public concern outweighs any effect it might have on
the Hospital’s providing services to the public. Herrera passes
the Pickering/Connick balancing test with flying colors.
4. Speech as a substantial or motivating factor.
This brings us to the third step in our testing. On the
question whether Herrera’s speech was a motivating factor for his
punishment, the district court emphasized that the Hospital had
essentially conceded this point in its Trial Brief when it stated:
“If Plaintiff Herrera had removed the button from his uniform on
any of the numerous occasions he was asked to do so by his
supervisors, he would not have been disciplined.”53 Furthermore,
noted the district court, other circuits have concluded that
“refusing to obey an order that implicates an employee’s First
Amendment rights is not a sufficient reason for disciplining the
53
See CWA II, 241 F. Supp. 2d at 627. The court also observed
that, even though the Hospital would say that quotation is out of
context, that it was meant to demonstrate that Herrera was punished
for insubordination, the statement is nonetheless “an unequivocal
admission” that the button was a “substantial motivating factor” in
the adverse employment action.
25
employee.”54 And, the lack of disciplinary action meted out to
employees who knuckled under and removed their buttons demonstrates
beyond cavil that the continued wearing of the button in violation
of the dress code was at least a motivating factor behind Herrera’s
discipline, notwithstanding the Hospital’s strenuous contentions to
the contrary. After all, the only employee disciplined was
Herrera, who was the only employee who continued to wear the
button.55
But even if we concede arguendo that insubordination too was
“a” cause of the adverse employment action (which we address more
fully below), none can contend, at least not in full candor, that
insubordination was the sole reason. Stated differently, the
record evidence establishes beyond peradventure that Herrera’s
protected speech was also a (if not the) motivating factor.
5. Would the adverse employment action have been taken absent
Herrera’s protected speech?
Independently, Herrera’s employment file provides the answer
to the question whether he would have suffered the adverse
employment action but for the protected speech. His employment
record contains no negative marks, comments, or references to any
54
CWA I, 241 F. Supp. at 614. (quoting Dunn v. Carroll, 40
F.3d 287, 291 (8th Cir. 1994), accord Leonard v. City of Columbus,
705 F.2d 1299, 1305 (11th Cir. 1983).
55
The confrontation with Durham, occurring as it did after
repeated unconstitutional commands to remove the button, does not
negate the importance of the button in motivating the adverse
employment decision, a point we discuss further infra.
26
other incidents of misconduct whatsoever. And, even though that
record on its face indicates that Herrera was disciplined for
“insubordination,” it goes on to make abundantly clear that the
insubordination for which he was punished arose from Durham’s
thrice-repeated, unconstitutional order to correct a dress code
violation.56 The record even notes the dress code’s policy number.
Under these circumstances, it is specious at least —— mendacious at
most —— for the Hospital to contend “that it would have reached the
same [employment] decision ... in the absence of the protected
56
It is important to note that the confrontation in the
cafeteria had not escalated to the point at which an altercation
might have occurred. Herrera’s coworker, Gerardo Medrano —— the
only disinterested witness, as he was no longer employed by the
Hospital by the time of the trial —— testified first that Herrera
was not angry during the confrontation. After prodding by defense
counsel, he conceded that Herrera was “kind of” angry, but on
cross-examination Medrano made clear that any tension involved in
the confrontation was incited by Durham and another supervisor,
Daniels:
Q: ... Wasn’t Mr. Berry’s question [from the deposition]
“Okay. So, he was kind of angry?”
A: Yes, sir.
...
Q: And then Mr. Berry’s next question on line 15 was,
“And he said that kind of in anger”. Did I read that
right?
A: Yes, sir.
Q: All right. Now, who showed anger first in that little
confrontation in the cafeteria? Who showed anger first?
Mr. Durham or Mr. Herrera?
A: John Durham and Mr. Daniels.
Q: Okay. And who showed – Who seemed more angry? Mr.
Durham or Mr. Herrera?
A: John Durham and Tim Daniels.
Q: Did they both seem more angry than Mr. Herrera?
A: Yes, sir.
27
conduct.”57 Like Poor Richard’s proverbial horse-shoe nail, if
Herrera had not engaged in the protected speech, he would not have
been ordered to cease; if he had not been so ordered repeatedly, he
would not have repeatedly refused to cease; if he had not
repeatedly (and increasingly emphatically) refused to cease, the
charge of “insubordination” and the ensuing adverse employment
decision would never have been made.58 This is a generous
characterization, as the claim that insubordination was the
motivation for the disciplinary action has the distinct ring of
provocation and post-hoc rationalization.
The Hospital’s attempt to cast its adverse action as
disciplining Herrera only for insubordination, which action would
have been taken regardless of the protected speech, proves too
much. Under this theory, any public employer could stifle the
First Amendment speech rights of employees with impunity. If an
employer wanted to stop an employee from engaging in
constitutionally protected speech (that is, speech on a matter of
57
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 287 (1977).
58
The absurdity of the Hospital’s position on this question
is illustrated by its Motion to Dismiss, in which it cannot keep
its own story straight. On the one hand, the Hospital asserts that
“Mr. Durham informed Plaintiff Herrera that if he violated the
dress code policy again, he would be reprimanded. Plaintiff
Herrera stated that he understood the consequences of violating the
dress code policy ....” (emphasis added). Later in the same
document, however, the Hospital argues that “It was not the alleged
‘speech’ or even his violation of the dress code policy that
precipitated the disciplinary action.” (emphasis added).
28
public concern that does not impede the employer’s efficient
operation), it need only order the employee to cease. If the
employee obeys, the employer has succeeded in quashing protected
speech; if the employee refuses, he has been insubordinate and is
subject to being fired or suspended, thus again stopping the
protected speech. This would be “win-win” for public employers
interested in quashing protected speech, but it would be “lose-
lose” for the First Amendment.
Still the Hospital protests that it was not Herrera’s
continued breach of the dress code and refusal to desist that
constituted the insubordination; rather, it was his “fighting
words” (“I’m not going to take it off. If you want it off, then
you take it off”) to Durham for which he was disciplined. Not only
does Herrera’s employment record put the lie to this pretextual
explanation by referring to the dress code by policy number; the
record facts eschew the Hospital’s attempt to portray the incident
as some highly charged “belly bumping” altercation. There was no
indication at trial that Herrera had been insubordinate or
disruptive in any way on the day of his suspension, other than in
the brief, Durham-provoked confrontation. That episode clearly was
incited (or exacerbated) by Durham himself.59 Under these
circumstances, it is obvious that the adverse employment action
would not have occurred “but for” the protected speech and the
59
See note 54, supra.
29
supervisor’s persistant, unconstitutional efforts to squelch that
speech.
C. Alleged Procedural Errors
1. Arguments insufficiently briefed.
The Hospital contends on appeal that the district court failed
to complete the Pickering/Connick balancing test analysis when
considering the parties’ motions for summary judgment, and by
shifting the burden of proof at trial, thereby committing error.
The Hospital neither makes substantive arguments on these points
nor cites relevant case law, presenting nothing more than
unsupported conclusional statements. As we have long and
repeatedly held that issues inadequately briefed to us are deemed
waived, we do not address these two arguments.60
2. Jury consideration of “factual” issues implicated in the
constitutional test.
As noted above, we find unconvincing the Hospital’s
substantive arguments that the protected speech at issue —— wearing
the Union button and refusing to take it off —— was not a
motivating factor of its adverse employment action against Herrera.
As for the procedural question whether the district court rather
60
Fed. R. App. P. 28(a)(9)(A) requires that the Appellant’s
brief contain “appellant’s contentions and the reasons for them,
with citations to the authorities and parts of the record on which
the appellant relies.” See also L&A Contracting Co. v. Southern
Concrete Servs., Inc., 17 F.3d 106, 113 (5th Cir.
1994)(“[Appellant] cites no authority ... on the attorney fee
question, however, and we consider the challenge abandoned for
being inadequately briefed.”).
30
than the jury was the proper party to decide the two “factual”
questions, we agree with Plaintiffs that “it is without question
that a district court may on a motion for summary judgment rule as
a matter of law that the summary-judgment evidence demonstrates
that no genuine issue of material fact exists for trial as to an
element essential to the non-moving party’s case.”61 Furthermore,
according to the district court’s analysis of the case, the
Hospital had “nowhere indicated that evidence [it] would have
offered on these issues at trial would in any material way have
differed from that which had already been considered and
rejected.”62 Instead, the Hospital continued to insist that Herrera
was not disciplined for his dress code violation. Although it is
true that these factual questions would normally be for the jury to
decide, the district court’s actions here are not error in light of
the summary judgment evidence on causation.63
D. Injunctive Relief
61
CWA II, 241 F. Supp. 2d 617, 627 (W.D. Tex. 2002), citing
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-
23 (1986).
62
CWA II, 241 F. Supp. 2d at 627.
63
The Hospital also insists that the district court should
have ordered a full trial on the merits, instead of limiting the
jury trial to the remaining undecided elements of the
Pickering/Connick balancing test. The Hospital again neither makes
substantive arguments on this point nor cites relevant case law.
Thus this argument, if not waived as inadequately briefed, appears
frivolous, given the function of the court at the summary judgment
stage. See notes 58-59, supra, and accompanying text.
31
The district court concluded that, because the Hospital had
failed, under the Pickering/Connick balancing test, to justify the
restrictiveness of the dress code, injunctive relief was necessary
to prevent the Hospital’s future application of the same
unconstitutional policy to other employees situated similarly to
Herrera. Plaintiffs had originally sought an injunction that would
allow all the Hospital’s employees to wear pro-union buttons.64 The
district court decided that this would be overbroad, but satisfied
itself that a more narrowly tailored injunction covering only those
employees who worked in conditions similar to Herrera, i.e., those
who work in the Hospital’s “Integrated Services” sector and have
limited contact and virtually no interaction with the general
public, would be appropriate. The district court reasoned quite
logically that, as the Hospital has continuously asserted that the
wearing of the button and refusal to obey orders to doff it “in no
way led to the disciplining of Herrera,” it “essentially concede[d]
that the message of the button is harmless and does not cause a
disturbance.”65
This was not an abuse of discretion. If the Hospital cannot
bar Herrera from wearing the button, neither can it bar similarly
situated employees from doing so. An injunction limited to
prohibiting the Hospital from enforcing the anti-adornment policy
64
CWA II, 241 F. Supp. 2d at 634.
65
Id. at 635.
32
against Herrera alone would have the potential of inviting more
litigation and squandering more judicial resources. As Plaintiffs
point out, this is especially true in light of the Hospital’s
demonstrated “belligerence” in this case and its dogged refusal to
accept (or even address) many of the district court’s rulings. We
perceive no reversible error in the injunction ruling of the
district court as finally tailored.
E. Attorneys Fees and Costs
The Hospital urges that the district court abused its
discretion in awarding fees and costs “because [Plaintiffs’] free
speech rights were not violated.” But, as we have concluded that
Herrera’s rights were violated, this argument is plainly
unavailing. As a fall-back position, however, the Hospital
contends that even if the Plaintiffs are entitled to attorneys’
fees, the quantum of the district court’s award of fees and costs
is not supported by sufficient or credible evidence. This
impresses us as being particularly inaccurate when considered in
the context of the district court’s extensive discussion of how its
award was calculated.66 Furthermore, as that court noted, many of
these costs could have been avoided had the Hospital not
steadfastly continued its “adamant refusal to deal with the
rulings” of the trial court, a litigating posture that the court
66
See CWA II, 241 F. Supp. 2d at 635-38.
33
labeled “a ‘fight to the last breath’ strategy.”67 The court
further explained:
Although the attorneys for Defendants were absolutely
certain that both judges in this action were completely
wrong in their analysis of the issues, it must be
observed that, even when lawyers disagree with judges,
they normally humor judges enough to address the issues
that the judges believe to be important in the matter.
Counsel need not adopt a judge’s view of a case, but they
should, at a minimum, confront it. While declining to do
so, as here, illustrates abundant self-confidence, it
also elongates a case and adds greatly to its cost ....68
This same scorched-earth strategy pervades the Hospital’s
appeal. It has challenged virtually every factual finding and
every legal conclusion made by the district court, no matter how
slight or relatively insignificant. Although this strategy may be
warranted on rare occasions, in the instant case many of the
Hospital’s arguments border on the frivolous, and others are
insufficiently briefed. The Hospital’s “kitchen sink” briefing in
this case was ill-advised. Although we refrain from finding this
appeal frivolous under Federal Rule of Appellate Procedure 38, as
requested by Plaintiffs, we are well satisfied that the Hospital’s
conduct in this matter and Plaintiffs’ supporting documentation
provide ample support for the district court’s extensive analysis
and ultimate amount assessed for attorneys’ fees. We discern no
abuse of discretion, and thus no reversible error.
III. Conclusion
67
CWA II, 241 F. Supp. 2d at 635.
68
Id.
34
The infringement on Herrera’s rights in this case was
inflicted pursuant to an official Hospital policy. Given its
content and its context, i.e., during the course of an ongoing
union organization effort, Herrera’s wearing of the lapel pin was
speech on a matter of public concern. And, although the
Pickering/Connick balancing test allows public employers to ban
inflammatory or disruptive speech in legitimate efforts to ensure
the efficient delivery of services, the Hospital has not produced
any probative evidence demonstrating that the wearing of a “Union
Yes” button by a carpenter or other member of the Integrated
Services subset of its employees is the kind of speech that has
produced, or is likely to produce, such deleterious effects.
Finally, we see the Hospital’s dogged insistence that Herrera was
disciplined solely for insubordination —— and not at least in
significant part for a dress code violation —— to be contrived and
disingenuous sophistry at best, and mendacious at worst. We
likewise conclude that the Hospital’s complaints about the
procedural rulings of the district court and its award of
attorneys’ fees are without merit, in no way approaching the level
of abuses of discretion. For the foregoing reasons, the district
court’s judgment is, in all respects,
AFFIRMED.
35
GARWOOD, Circuit Judge, dissenting.
I respectfully dissent.
As always, we must properly understand what is, and what is
not, before us. What is before us is a combined partial summary
judgment and a judgment as a matter of law holding unconstitutional
a local government’s nondiscriminatorily applied content and
viewpoint neutral uniform non-adornment policy applicable to its
employees while on duty.69 What is not before us is whether a
governmental employer may discipline an employee for advocacy of
better working conditions, cf. McGill v. Board of Education, 602
F.2d 774, 778 (7th Cir. 1979) (“advocacy of a collective bargaining
agreement in the teachers’ lounge and in an open meeting of the
school board”), or for belonging to a union, or because a union was
the subject matter addressed by the adornment the employee wore on
his uniform at work or because the viewpoint expressed thereby was
pro-union.
It is clear that with respect to restrictions on First
Amendment rights “the government as employer indeed has far broader
powers than does the government as sovereign” and “even many of the
69
Under the hospital’s policy, all employees were required to
wear a uniform while on duty. The required uniform for carpenters
(such as Herrera), electricians, cabinet-makers and plumbers,
consists of a gray shirt and gray pants. The policy provides that
“ONLY pins representing the professional association and the most
current hospital service award may be worn.” It is also provided
that the dress code will be enforced “uniformly throughout Medical
Center Hospital.”
most fundamental maxims of our First Amendment jurisprudence cannot
reasonably be applied to speech by government employees.” Waters
v. Churchill, 114 S. Ct. 1878, 1886 (1994). “On the other hand,
‘the threat of dismissal from public employment is . . . a potent
means of inhibiting speech,’” (quoting Pickering v. Board of
Education, 88 S. Ct. 1731, 1737 (1968)), and a “balancing” is thus
called for “to accommodate the dual role of the public employer.”
Rankin v. McPherson, 107 S. Ct. 2891, 2897 (1987). This is so
because it “is necessary to ensure that public employers do not use
authority over employees to silence discourse, not because it
hampers public functions but simply because superiors disagree with
the content of employees’ speech.” Id. (emphasis added). That
concern is not implicated here, but it has been present throughout
the Supreme Court’s Pickering line of cases.70 This likewise true
70
See, e.g., Pickering v. Board of Education, 88 S. Ct. 1731,
1732-33 (1988) (teacher’s letter to newspaper criticizing Board of
Education’s school finance proposal); Perry v. Sindermann, 92 S. Ct.
2694, 2696 (1972) (college teacher’s legislative testimony
supporting position opposed by college’s board of regents); Mt.
Healthy City Board of Ed. v. Doyle, 97 S. Ct. 568, 573
(1977)(teacher’s telephone call to radio station conveying
substance of memorandum relating to teachers’ dress and appearance
and “his criticism”); Givhan v. Western Line Consolidated School
Dist., 99 S. Ct. 693, 695 (1979) (teacher’s criticism to principal
of school district’s racially discriminatory policies and
practices); Connick v. Myers, 103 S. Ct. 1684, 1693 (1983)
(assistant district attorney’s questionnaire circulated in office
which impliedly criticized district attorney and supervisors);
Rankin v. McPherson, 107 S. Ct. 2891, 2900 (1987) (“it is undisputed
that he fired McPherson based on the content of her speech”). See
also Waters v. Churchill, 114 S. Ct. 1878, 1884 (1994) (nurse’s
criticism of employer hospital’s violation of state nursing
37
with respect to this court’s decisions applying Pickering and its
progeny.
When, however, the governmental employer’s regulation of
employee First Amendment protected expression is by
nondiscriminatory and content/viewpoint neutral general regulation,
the balancing process is far more heavily tilted in favor of the
government even where the First Amendment protected activity is of
the kind most clearly and strongly a matter of public concern.
That is evident in the Supreme Court’s decisions upholding the
Hatch Act, restricting a broad range of partisan political
activities of all federal civil service employees, and its Oklahoma
analog applicable to all that state’s civil service employees.
United States Civil Service Commission v. National Association of
Letter Carriers, 93 S. Ct. 2880 (1973); Broadrick v. Oklahoma, 93
S. Ct. 2908 (1973). In Broadrick the Court observed that “[u]nder
the decision in Letter Carriers there is no question that . . .
[the Oklahoma statute] is valid at least insofar as it forbids
classified employees from [inter alia] . . . addressing or taking
an active part in partisan political rallies or meetings;
soliciting votes . . .; participating in the distribution of
partisan campaign literature; . . . circulating partisan nominating
petitions . . . .” Broadrick, 93 S. Ct. at 2918. The Court
obviously recognized that these statutes restricted First Amendment
regulations and the quality of nursing care provided patients).
38
protected freedom of speech directly on and closely involving
matters which could not be more clearly of the very strongest
public concern.71 Indeed, few if any matters can be of more public
concern than elections, or more closely and directly related
thereto than addressing a political rally, soliciting votes, or
distributing campaign literature. Nevertheless, the Court
sustained those statutes and did so even though they extended to
the lowest level civil service employees, without regard to whether
their government positions involved any policy making or discretion
or any contact or interaction with the public, or whether while
engaging in the proscribed expression the employee was identified
(or likely to be known) as a government employee, or whether while
so engaged the employee was on duty or on any government property,
and without regard to whether the election in question was one to
71
See Broadrick, 93 S. Ct. at 2918 (the state statute “is
directed, by its terms, at political expression which if engaged in
by private persons would plainly be protected by the First and
Fourteenth Amendments”); Kelley v. Johnson, 96 S. Ct. 1440, 1445
(1976) (“we have sustained comprehensive and substantial
restrictions upon activities of both federal and state employees
lying at the core of the First Amendment,” citing Letter Carriers
and Broadrick; emphasis added).
39
a federal office (in Letter Carriers).72 In so holding, the Supreme
Court stressed that:
“The restrictions . . . imposed on federal employees are
not aimed at particular parties, groups, or points of
view, but apply equally to all partisan activities of the
type described. They discriminate against no racial,
ethnic, or religious minorities. Nor do they seek to
control political opinions or beliefs, or to interfere
with or influence anyone’s vote at the polls.”73
I am willing to assume, arguendo, that the wearing of the
“Union Yes” button was speech on a matter of public concern. But
if that is so, it is so only in a very weak and attenuated sense.
The “speech” only occurs only during the course of employment and
not in anything considered a public forum, and it addresses no
72
In Wachsman v. City of Dallas, 704 F.2d 160, 171 (5th Cir.
1983), we noted that “[v]irtually all the numerous restrictions on
federal employee political activity upheld in Letter Carriers . .
. apply as much to strictly state and local elections and political
affairs as to elections for federal office and political activities
attendant thereto.”
Wachsman likewise held that the rationale of Letter Carriers
and Broadrick applied to non-partisan candidate elections and to
employee contributions. Wachsman, 704 F.2d at 164-75. The city
ordinance challenged in Wachsman also involved, among other
provisions, a prohibition against any city employee wearing “city
council campaign buttons . . . at work or in a city uniform or in
the offices or buildings of the City;” the City employees
challenging the ordinance did not, however, challenge that
provision. Wachsman, 704 F.2d at 162. See also, e.g., Bart v. Tel
Ford, 677 F.2d 622, 624 (7th Cir. 1982) (no first amendment
violation to require employee to take leave of absence before
running for city office where not aimed at particular groups,
parties or points of view).
73
Letter Carriers, 93 S. Ct. at 2890. See also Broadrich, 93
S. Ct. at 2918 (the challenged act “is not a censorial statute,
directed at particular groups or viewpoints . . . The statute,
rather, seeks to regulate political activity in an even-handed and
neutral manner”).
40
specific matter. It certainly does not even impliedly address any
corruption, violation of law, misconduct or malfeasance on the part
of the hospital or any one else. Nor does it even impliedly
address any potential employee election to choose the union as
bargaining representative for any of the hospital employees, or any
potential “recognition” of the union by the hospital, or any
potential contract between the employees and the hospital or any
potential strike or organized work stoppage by such employees.74
74
Under Texas Government Code § 617.002, “a political
subdivision . . . may not enter into a collective bargaining
agreement with a labor organization regarding wages, hours, or
conditions of employment of public employees” and “a political
subdivision . . . may not recognize a labor organization as the
bargaining agent for a group of public employees.” Id. (b).
“Public employees may not strike or engage in an organized work
stoppage.” Id. § 617.003(a). Further, “[a]n individual may not be
denied public employment because of the individual’s membership or
non membership in a labor organization.” Id. § 617.004.
The foregoing provisions of Texas law do “not impair the right
of public employees to present grievances . . . either individually
or through a representative.” Id. § 617.005. “Representative” as
used in the statute is not restricted to unions or union members
but includes persons who are neither. Sayre v. Mullins, 681 S.W.2d
25 (Tex. 1984). As we explained in Moreau v. Klevenhagen, 956 F.2d
516, 520 (5th Cir. 1992), aff’d, 113 S. Ct. 1905, 1909 n.10 (1993):
“Presentation of grievances is acceptable under Texas law
because it is a unilateral procedure under which the
employee can be represented by anyone he or she chooses,
be it a lawyer, clergyman, union or some other person or
organization. Texas law prohibits any bilateral
agreement between a city and a bargaining agent, whether
the agreement is labeled a collective bargaining
agreement or something else. Under Texas law, the County
could not enter into any agreement with the Union.”
This is largely in contrast to the situation of Federal
agencies and their employees governed by the Federal Service-Labor
Management Relations Statute, 5 U.S.C. §§ 7101-7135, under which
unions that have won an election supervised by the Federal Labor
Relations Authority are certified as the exclusive bargaining agent
41
While the “Union Yes” button may implicitly express the view that
the hospital employee wearing it believes working conditions and/or
compensation there would be better for him or her, and perhaps
similarly situated fellow employees, if more hospital employees
were union members, it is less than clear what, if anything, else
is implied. It is the purest speculation to suggest anything more.
In determining whether speech is as a matter of public concern we
look to the “speech” allegedly giving rise to the complained of
action by the governmental employee, not some other speech. See,
e.g., Waters, 114 S. Ct. at 1891. Not everything that concerns
discipline or morale in a governmental office is of public concern,
and “the First Amendment does not require a public office to be run
as a roundtable for employee complaints over internal office
affairs.” Connick, 103 S. Ct. at 1691. As we have frequently held,
“[c]ommunication thus rises to the level of public concern if a
person speaks primarily as a citizen rather than as an employee.”
Dorsett v. Board of Trustees For State Colleges, 940 F.2d 121, 124
(5th Cir. 1991) (emphasis added). As noted, if Herrera’s violation
of the uniform anti-adornment policy meets this test, it does so
only minimally. In such a situation the government’s burden in
of the employees and the agency is under a duty to bargain
collectively with the union (subject to certain reserved management
rights). See, e.g., 5 U.S.C. §§ 7111, 7114, 7116. However,
strikes and work stoppages are prohibited. § 7116(b)(7). The
contrast is, of course, even greater with respect to unions and
employers governed by the National Labor Relations Act.
42
justifying its action is correspondingly reduced, as we explained
in Department of Justice v. FLRA, 955 F.2d 998, 1006 (5th Cir.
1992) (“FLRA”):
“‘[T]he State’s burden in justifying a particular [action
or policy] varies depending upon the nature of the
employee’s expression.’ Connick [v. Myers], 461 U.S.
[138] at 150, 103 S. Ct. at 1692 [1983]. ‘The more
central a matter of public concern the speech [or
association] at issue, the stronger the employer’s
showing of counter-balancing governmental interest must
be.’ Coughlin [v. Lee], 946 F.2d [152] at 1157 [5th Cir.
1991].”
Certainly an employer has a legitimate interest in
establishing a uniform policy for its on duty employees. We
recognized such an interest in FLRA, supra, as well as in Daniels
v. City of Arlington, 246 F.3d 500, 504 (5th Cir. 2000). While
those cases involved law enforcement personnel, we have never held
that a content neutral uniform policy advances no legitimate
interest of a non-law-enforcement public employer in promoting the
efficiency of its services. A “uniform requirement fosters
discipline, promotes uniformity, encourages esprit de corps, and
increases readiness” and standardized uniforms encourage the
subordination of personal preferences and identities in favor of
the overall group mission. INS v. Federal Labor Relations
Authority, 855 F.2d 1454, 1464 (9th Cir. 1988). There is no reason
to believe that a uniform policy will not have similar efficiency
promoting effects in the non-law-enforcement context. Moreover, as
observed in INS v. Federal Labor Relations Authority, supra,
43
“To allow employees to adorn their uniforms with objects
of their own choosing undermines the very purposes that
uniforms serve.” Id. at 1464.
. . .
“. . . the management interest in requiring unadorned
uniforms has been recognized in private sector cases as
well. The Sixth Circuit has recognized that concerns
over discipline and presenting a clean professional image
justified a private employer in prohibiting its
restaurant employees from wearing unauthorized union
buttons on their official uniforms. Burger King v. NLRB,
725 F.2d 1053, 1055 (6th Cir. 1984). Similarly, in
Harrah’s Club, we recognized that a private employer was
justified in prohibiting its casino employees from
wearing unauthorized union buttons on their official
uniforms. See Harrah’s Club, 337 F.3d [177] at 178-79
[9th Cir. 1964)]. Id. at 1465.
We have recognized that “a union button” worn on duty “can be
interpreted as a symbol of defiance of supervisors and as a split
in solidarity among union and non-union” employees “which will have
an [adverse] impact on mission, discipline and esprit de corps.”
FLRA, 955 F.2d at 1007. There is no reason to think that this is
not equally true respecting hospital employees. Moreover, our
above quoted assumptions about the effects of uniform adornment in
FLRA were made despite the fact that the employer “has not
demonstrated with anecdotal evidence that these deleterious effects
will in fact occur.” Id. We justified that by stating:
“The Supreme Court, in Connick, held, however, that it is
not necessary ‘for an employer to allow events to unfold
to the extent that the disruption of the office and the
destruction of the working relationship is manifest
before taking action.’” FLRA at 1007 (quoting Connick,
103 S. Ct. at 1692).
44
Here, by contract, there is anecdotal evidence that the wearing of
union buttons does give rise to strong and hostile workplace
emotions and confrontations. When told on a second occasion to
take off his button, Herrera “got upset,” became “very
disrespectful,” almost “hostile,” and replied to his supervisor
that “if you want to take it off, you take it off” – a remark that
any reasonable fact finder could easily conclude was an invitation
to physical confrontation. The supervisor wisely declined the
invitation and testified that he then “offered him [Herrera] to
just go to my office, then Mr. Herrera stood up and jabbed his fist
in the air very defiantly and yelled ‘Union Up.’” All this
occurred in the hospital cafeteria, in the presence of other
employees, visitors and patients.75
75
The majority’s statement that “[i]t is important to note that
the confrontation in the cafeteria had not escalated to the point
at which an altercation might have occurred” (emphasis added), is
nothing more than the purest appellate fact finding, as is its
strained characterization of the witness Medrano as
“disinterested.” Medrano, who likewise wore a “union yes” button,
and had been a co-employee and co-union member with Herrera,
testified he was “good friends” with Herrera, that he had visited
in Herrera’s home and they were “such good friends” that he would
consider Herrera “like a brother.” Moreover, portions of Medrano’s
trial testimony were shown to be inconsistent with his deposition
testimony in several respects. For example, Medrano clearly
testified that when Herrera said “I’m not going to take it off, you
take it off” Herrera was not “angry.” Only when confronted with
his contrary deposition testimony (in which he replied “Yes, sir”
when asked, respecting the same statement, whether Herrera “said
that in anger”), did Medrano back off and attempt another route to
throw blame on the supervisors.
45
Moreover, in FLRA we also relied on the fact that the uniform
anti-adornment policy “results in only a minimal intrusion of the
free speech rights of union employees” who “can continue to express
their support for the union in myriad other ways unaffected by” it.
Id. at 1007. The same is equally true in the present case.
There is also, as we noted in FLRA, the governmental
employer’s legitimate interest in projecting “an appearance to the
public of neutrality and impartiality.” Id. at 1007. While this
interest may well be at its strongest in the context of law
enforcement personnel, it is certainly not categorically absent
otherwise. Certainly Hospital employees such as Herrera are seen
– indeed regularly seen – by patients and visitors and other
members of the public. The cafeteria in which they eat and take
their twice a day breaks are likewise used by patients, visitors
and other members of the public; they ride with members of the
public in the elevators, and pass them in the halls and on the
stairs. There are some, albeit comparatively infrequent, occasions
when they perform their work in then occupied patient rooms. The
majority stresses “the difference between contact and interaction.”
There is a difference, but that does not mean that contact is not
relevant, only that true interaction is likely more so. After all,
any reasonable patient, visitor, or other member of the public, and
any reasonable co-employee, will understand the button with the
written message on it as an attempt by its wearer to communicate
46
the content of the message to those with whom he comes into contact
(such as by riding with them in the elevator or passing them in the
halls or sitting at the cafeteria table next to them) not simply,
or even primarily, those with whom he interacts. That, of course,
is the point of the button. These buttons are wholly unlike what
the speaker believes to be only a private conversation with a close
friend, as in Rankin. How are patients or visitors (or co-
employees) to feel when they see many on duty employees wearing
buttons on their hospital uniform saying, for example, “Deport
Illegals NOW” or “Abortion is Murder” or “Unions Steal,” all
relating to issues of at least as much public concern as “Union
Yes.” It makes little sense, and surely runs contrary to Connick,
to suggest that the employer must wait until public, or co-
employee, dissatisfaction or disharmony has manifested itself
before prohibiting such on duty display. On the other hand, to
even then single out for prohibition one, or a few, particular
button messages raises its own substantially more serious concerns,
namely that the prohibition is made “because superiors disagree
with the content of” the message, Rankin, 107 S. Ct. at 2897, or
because the message is not “politically correct” or simply because
the message is unpopular.
For example, in Police Department of City of Chicago v.
Mosley, 92 S. Ct. 2286 (1972), the Court held unconstitutional a
city ordinance prohibiting all picketing within 150 feet of a
47
school, except peaceful picketing of a school involved in a labor
dispute. The Court stated:
“The central problem with Chicago’s ordinance is that it
describes permissible picketing in terms of its subject
matter. Peaceful picketing on the subject of a school’s
labor-management dispute is permitted, but all other
peaceful picketing is prohibited. The operative
distinction is the message on a picket sign. But, above
all else, the First Amendment means that government has
no power to restrict expression because of its message,
its ideas, its subject matter, or its content.” Id. at
2290 (emphasis added).
The Mosley Court went on to quote the views expressed in Justice
Black’s concurring opinion in Cox v. Louisiana, 85 S. Ct. 453, 470
(1965), that
“‘[B]y specifically permitting picketing for the
publication of labor union views [but prohibiting other
sorts of picketing], Louisiana is attempting to pick and
choose among the views it is willing to have discussed on
its streets. It thus is trying to prescribe by law what
matters of public interest people whom it allows to
assemble on its streets may and may not discuss. This
seems to me to be censorship in a most odious form,
unconstitutional under the First and Fourteenth
Amendments. . . .’” Mosley, 92 S. Ct. at 2291 (quoting
Cox, 85 S. Ct. at 470, Black, J., concurring).
Mosley then states “we accept Mr. Justice Black’s quoted views.”
Id. Mosley likewise explains that:
“In this case, the ordinance itself describes
impermissible picketing not in terms of time, place and
manner, but in terms of subject matter. The regulation
thus slip[s] from the neutrality of time, place, and
circumstance into a concern about content. This is never
permitted.” Mosley at 2292 (internal quotation marks and
footnote omitted).
48
Finally, the clear – indeed the necessary – inference of the
decisions in Letter Carriers, Broadrick and Wachsman is that in any
balancing of interests the content and viewpoint neutral nature of
the governmental employer’s challenged restriction weighs heavily
in favor of its validity.76
The net effect of these basic principles, it seems to me, is
that the approach which both best protects core First Amendment
values and also gives appropriate recognition to the government’s
interests as employer, is to sustain content and viewpoint neutral
employee on duty uniform anti-adornment policies, which leave open
myriad other means and avenues of employee expression, rather than
requiring the employer either to allow virtually all messages to be
added to employee uniforms worn at work or to pick and choose on
the basis of the particular message language and the mission
related effects of that particular expression which the employer
anticipates and/or has experienced. Certainly no decision of the
76
That, of course, does not mean that all content and viewpoint
First Amendment restrictions imposed by a governmental employer on
its employees are valid. There must be some rational nexus to the
employment. For example, in U.S. v. National Treasury Employers
Union, 115 S. Ct. 1003 (1995), the Court held invalid a preclusion
of any federal employee from accepting any compensation for making
(or writing) any speech or article even though made or written off
duty, concerning a subject with no connection to the employee’s
duty and paid by a person or group having no such connection. Id.
at 1008. Here by contrast the neutral uniform anti-adornment
policy applies only to employees while on duty.
49
Supreme Court or of this court commands a different result or
approach than that here advocated.77
It is indeed a jurisprudence gone badly astray which precludes
the nondiscriminatory, evenhanded application of the hospital’s
content and viewpoint neutral uniform anti-adornment policy to the
wearing of “Union Yes” buttons on duty, but at the same time, under
Letter Carriers, Broadrick and Wachsman, permits the Hospital
District to adopt and even handedly enforce a content and viewpoint
neutral regulation forbidding all its employees from, even when off
duty, addressing a political rally for an election to the Hospital
District’s Board or handing out campaign literature for such an
election, matters of much more public concern, but far less closely
related to employment, than the adornment with “Union Yes” buttons
of employee uniforms worn at work.78
77
I recognize that the majority’s rationale and result here
does find support in Scott v. Meyers, 191 F.3d 82 (2d Cir. 1999),
and in language in American Fed’n of Gov’t Employees v. Pierce, 586
F. Supp. 1559 (D.D.C. 1994), although the latter decision rested
primarily on the ground that the restriction in question was
precluded by the plain language of the governing regulation. 586
F. Supp. at 1651. However, I respectfully disagree with the
analysis in these opinions which fails to address the neutrality
principles emphasized in Letter Carriers and Mosley, and the fact
that the Supreme Court’s Pickering line of cases, at least so far
as they deal with workplace expression, relate to content/viewpoint
based retaliation or restriction.
78
Ironically, the majority (footnote 25) finds comfort in the
fact that one union member had run “for a position on the ECHD
Board.”
The majority also contends (footnote 40) that the hospital’s
allowing the wearing of the pins of two local high schools “at the
time of their annual football showdown” renders “especially hollow”
50
We are taking a seriously wrong fork in the road. I
respectfully dissent.79
its “‘esprit de corps/unity argument” and “smacks of” content based
discrimination. This contention wholly fails the common sense
test. Nor is there any evidence that wearing such pins once a year
would tend to (or ever did) undermine employee esprit de corps or
unity or would likely do so about as much as a whole range of other
possible button messages, including “Union Yes” and many others
addressing more truly serious matters than who wins a high school
football game. Nothing is added by citing the 1990 Bissinger book
– a strictly popular, non-peer reviewed, non-academic or scientific
writing (which was not judicially noticed below) – for the
proposition that the rivalry is “famously intense.” If we are
going to indulge in that sort of questionable practice, we might do
better to note the sworn testimony in such cases as, for example,
Scott v. Moore, 680 F.2d 979 (5th Cir. 1982), rev’d, 103 S. Ct. 3352
(1983). The essentially silly football pin once a year type
argument has, so far as I am aware, been uniformly rejected by the
courts which have addressed it. See, e.g., INS v. Federal Labor
Relations Authority, 855 F.2d at 1465; Burger King v. NLRB, 725
F.2d 1053, 1055 (6th Cir. 1984). If local government means
anything, we must, in the absence of clear contrary evidence, defer
to the local hospital’s implicit decision that the once a year
wearing of local high school pins fostered employee morale and did
not tend to undermine employee unity or esprit de corps, or public
perception of neutrality, as would the wide range of other buttons.
79
A brief rejoinder to the majority’s replies to this
dissent.
The majority (note 11) likens this case to Mosely, but
neglects to note Mosely’s holding that “[t]he central problem with
Chicago’s ordinance is that” by its terms “[p]eaceful picketing on
the subject of a school’s labor-management dispute is permitted,
but all other peaceful picketing is prohibited.” Id., 92 S.Ct. at
2290 (emphasis added). The majority apparently thinks that because
the blanket uniform non-adornment policy (which neither specifies
nor even suggests any particular prohibited subject matter) allows
“pins representing the professional association and the most
current hospital service award” and also once a year wearing of
local high school pins, that it is the equivalent of a policy
barring only specified subject matter. In my opinion, that
approach unrealistically trivializes – and in practical effect
destroys – the fundamental distinction between content/viewpoint
51
neutral regulations “not aimed at particular parties, groups, or
points of view,” Letter Carriers, 93 S. Ct. at 2890, and
restrictions imposed “simply because superiors disagree with the
content of employees’ speech.” Rankin, 107 S. Ct. at 2897. See
also note 10, supra. The suggestion (majority opinion note 36)
that Letter Carriers and Broadrick are nothing more than standing
cases simply misreads those opinions. See, e.g., Broadrick, 93
S. Ct. at 2918 (“under the decision in Letter Carriers there is no
question that . . . [the statute at issue] is valid at least
insofar as it forbids classified employees from . . . addressing .
. . partisan political rallies or meetings; participating in the
distribution of partisan campaign literature; . . . circulating
partisan nominating petitions . . .”) (emphasis added); Kelley, 96
S. Ct. at 1445 (“we have sustained comprehensive and substantial
restrictions upon activities of both federal and state employees
lying at the core of the First Amendment,” citing Letter Carriers
and Broadrick;) (emphasis added).
52