CWA v. Ector Cty Hosp Dist

402 F.3d 503

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 22, 2004
• Docket: 03-50230
• Status: Published

Opinion

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).