Communication Workers v. Ector County Hosp. Dist.

• Decision Date: 01 December 2004
• Docket Number: No. 03-50230.,03-50230.
• Citation: 392 F.3d 733
• Parties: COMMUNICATION WORKERS OF AMERICA; Urbano Herrera, Plaintiffs-Appellees, v. 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.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 733

392 F.3d 733

COMMUNICATION WORKERS OF AMERICA; Urbano Herrera, Plaintiffs-Appellees, v. 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.

No. 03-50230.

United States Court of Appeals, Fifth Circuit.

December 1, 2004.

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David A. Van Os (argued), Matthew G. Holder, David Van Os & Associates, San Antonio, TX, for Plaintiffs-Appellees.

William Stacy Trotter, William Everett Berry, Jr. (argued), Robert Eugene Motsenbocker, Shafer, Davis, Ashley, O'Leary & Stoker, Odessa, TX, for 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 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 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 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

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 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.

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 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...