Communications Workers of America v. Ector County Hospital District

467 F.3d 427, 180 L.R.R.M. (BNA) 2769, 2006 U.S. App. LEXIS 25024, 2006 WL 2831142
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 5, 2006
DocketNo. 03-50230
StatusPublished
Cited by13 cases

This text of 467 F.3d 427 (Communications Workers of America v. Ector County Hospital District) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Communications Workers of America v. Ector County Hospital District, 467 F.3d 427, 180 L.R.R.M. (BNA) 2769, 2006 U.S. App. LEXIS 25024, 2006 WL 2831142 (5th Cir. 2006).

Opinions

GARWOOD, Circuit Judge:

Defendant-appellant Ector County Hospital District, a political subdivision of the State of Texas which owns and operates the Medical Center Hospital in Odessa, Texas, appeals the district court’s judgment in favor of plaintiffs-appellees Urba-no Herrera, an employee of the Hospital, and Communications Workers of America, the union to which Herrera belongs. The district court ruled that the Hospital violated the First Amendment rights of Herrera and the union by disciplining Herrera for violating the Hospital’s uniform non-adornment policy by refusing to remove the “Union Yes” button worn on his uniform while at work at the Hospital on November 11, 1999. The district court issued a permanent injunction requiring the Hospital “to allow all of the employees in its ‘Integrated Services’ organization to wear pro-union buttons,” awarded the plaintiffs some $91,000 attorney’s fees and awarded Herrera $548.85 damages.1 A divided panel of this court affirmed. Communication Workers of America v. Ector County Hospital District, 392 F.3d 733 (5th Cir.2004) (CWA III). We subsequently took the case en banc. Communications Workers of America v. Ector County Hospital District, 402 F.3d 503 (5th Cir.2005). We now reverse, holding that, under the balancing test of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968), the interest of the Hospital in promoting the efficiency of the public service it performs by means of its uniform non-adornment policy outweighs the interest of its Integrated Services employees such as Herrera in wearing a “Union Yes” button on their uniforms while on duty at the Hospital.

Facts and Proceedings Below

The district court partially granted the motion for summary judgment of plaintiffs and ruled that Herrera’s wearing of the “Union Yes” button on his uniform while at work constituted speech on a matter of public concern, but further ruled that resolving the appropriate Pickering balanc[431]*431ing required an actual trial. CWA I.2

Subsequently, the case proceeded to trial before a jury in October 2002, with the Hospital assigned the burden of proof on the Pickering balance issue. At the conclusion of the Hospital’s evidence, the district court granted the plaintiffs’ motion for judgment as a matter of law, discharged the jury and entered the above described judgment for plaintiffs. CWA II, 241 F.Supp.2d at 638. The court concluded that under the evidence “the Pickering balancing test favors Plaintiffs.” Id. at 632. The panel majority affirmed, reaching the same conclusion. CWA III, 392 F.3d at 742-46.

The undisputed trial evidence reflects that the Medical Center Hospital is a political subdivision of the State of Texas governed by an uncompensated seven person board of directors elected from single member districts and serving staggered two year terms. Medical Center Hospital’s mission is “to provide high quality health care to the residents of the Permian Basin, including Odessa but also the outlying counties.” It is a “full service hospital,” and, among other things, is the “lead facility for trauma cases” in its area, provides “a full service operating room operating seven days a week, generally twenty-four hours a day,” delivers approximately 120 babies a month, has “an extensive cardiac program,” and was “listed as one of the top 100 cardiovascular hospitals in the country.” Indigent care is provided and patients are not turned away “because they can’t pay or don’t have insurance.” The Hospital has “slightly over 1500 employees.” It has a single cafeteria (apparently located on the ground floor) which is sed by Hospital employees, patients and visitors for meals, breaks and the like.

Under the Hospital’s established dress code policy, all employees were and are required to wear a uniform while on duty. The required uniform for carpenters (such as Herrera), electricians, plumbers, and others in similar positions, 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 also provides that the dress code will be enforced “uniformly throughout Medical Center Hospital.” The trial evidence reflects that the same policies with respect to dress code and the wearing of pins apply to carpenters as apply to all other employees. The undisputed evidence at trial also reflected the stated exception for pins representing “professional association” does not refer to pins representing membership in an organization but rather to those representing professional credentials, as, for example, nurses who have received a Bachelor’s degree in nursing, or a Master’s degree, “that individual can wear the professional pin, a designation of those credentials that person has earned.” The evidence also showed that three other exceptions had been made to the anti-adornment policy. There was testimony that, for more than fourteen years, during the week (or on the day) before the annual football game between Odessa High School and Permian High School the Hospital allows its employees “to celebrate the school they support by wearing the colors of their school.” The uncontradicted evidence was that this was “to encourage a little esprit de corps and friendly camaraderie” and had never resulted in any tension at the Hospital. [432]*432Exceptions were also made “twice a year” to accommodate two other occasions. One is the “Great American Smoke Out” day, on which the Hospital, which is a smoke-free facility, sets up a booth which passes out pins, “monikers” and gum to people to get them not to smoke that day. The second exception is that the Hospital, where “blood shortages” are a “very difficult problem,” has blood drives and donors are given and may wear “a little pin saying I’m a donor.” The uncontradicted evidence is that these pins cause no disruption but “only build esprit de corps and build morale.”

The trial evidence reflects the following respecting the incident giving rise to this suit. On November 11, 1999, Hospital employee Herrera, a carpenter, wore a “Union Yes” button on his uniform while at work at the Hospital renovating a vacant patient room, adjacent to occupied patient rooms, on the seventh floor, the labor and delivery floor, of the Hospital.3 As Herrera was waiting for the elevator to go to the cafeteria for his morning break, he came into contact with Tim Daniels, the Hospital general maintenance supervisor, who told him to remove the “Union Yes” button as it was not allowed by the Hospital’s dress code. Herrera refused to remove the button and told Daniels to “show me the policy.” Daniels did not have the policy with him. Herrera proceeded to the cafeteria where he joined his good friend Medrano, a plumber employed by the Hospital and likewise a Union member who also had worn a “Union Yes” button to work that day.4 Shortly after 9:30 a.m. Daniels and John Durham, the Hospital’s Technical Services Director, and supervisor over both Daniels and Herrera, came into the cafeteria, and, as reflected by the undisputed testimony of Herrera, Medrano and Durham, Durham explained the non-adornment policy to Herrera and asked him to remove the “Union Yes” button and Herrera declined. On being asked again, Herrera replied “I’m not going to take it off.

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Bluebook (online)
467 F.3d 427, 180 L.R.R.M. (BNA) 2769, 2006 U.S. App. LEXIS 25024, 2006 WL 2831142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/communications-workers-of-america-v-ector-county-hospital-district-ca5-2006.