Communications Workers of America v. Ector County

• Decision Date: 05 October 2006
• Docket Number: No. 03-50230.,03-50230.
• Citation: 467 F.3d 427
• Parties: COMMUNICATIONS 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

467 F.3d 427

COMMUNICATIONS 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.

October 5, 2006.

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

Miles Robert Nelson (argued), Robert Eugene Motsenbocker, William Stacy Trotter, William Everett Berry, Jr. (argued), 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 JONES, Chief Judge, and KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, SMITH, WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, and OWEN, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Ector County Hospital District, a political subdivision of the State of Texas which owns and operates the Medical Center Hospital in Odessa, Texas, appeals the district court's judgment in favor of plaintiffs-appellees Urbano Herrera, an employee of the Hospital, and Communications Workers of America, the union to which Herrera belongs. The district court ruled that the Hospital violated the First Amendment rights of Herrera and the union by disciplining Herrera for violating the Hospital's uniform non-adornment policy by refusing to remove the "Union Yes" button worn on his uniform while at work at the Hospital on November 11, 1999. The district court issued a permanent injunction requiring the Hospital "to allow all of the employees in its `Integrated Services' organization to wear pro-union buttons," awarded the plaintiffs some $91,000 attorney's fees and awarded Herrera $548.85 damages.¹ A divided panel of this court affirmed. Communications Workers of America v. Ector County Hospital District, 392 F.3d 733 (5th Cir.2004) (CWA III). We subsequently took the case en banc. Communications Workers of America v. Ector County Hospital District, 402 F.3d 503 (5th Cir. 2005). We now reverse, holding that, under the balancing test of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968), the interest of the Hospital in promoting the efficiency of the public service it performs by means of its uniform non-adornment policy outweighs the interest of its Integrated Services employees such as Herrera in wearing a "Union Yes" button on their uniforms while on duty at the Hospital.

Facts and Proceedings Below

The district court partially granted the motion for summary judgment of plaintiffs and ruled that Herrera's wearing of the "Union Yes" button on his uniform while at work constituted speech on a matter of public concern, but further ruled that resolving the appropriate Pickering balancing required an actual trial. CWA I.²

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

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

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

The trial evidence reflects the following respecting the incident giving rise to this suit. On November 11, 1999, Hospital employee Herrera, a carpenter, wore a "Union Yes" button on his uniform while at work at the Hospital renovating a vacant patient room, adjacent to occupied patient rooms, on the seventh floor, the labor and delivery floor, of the Hospital.³ As Herrera was waiting for the elevator to go to the cafeteria for his morning break, he came into contact with Tim Daniels, the Hospital general maintenance supervisor, who told him to remove the "Union Yes" button as it was not allowed by the Hospital's dress code. Herrera refused to remove the button and told Daniels to "show me the policy." Daniels did not have the policy with him. Herrera proceeded to the cafeteria where he joined his good friend Medrano, a plumber employed by the Hospital and likewise a Union member who also had worn a "Union Yes" button to work that day.⁴ Shortly after 9:30 a.m. Daniels and John Durham, the Hospital's Technical Services Director, and supervisor over both Daniels and Herrera, came into the cafeteria, and, as reflected by the undisputed testimony of Herrera, Medrano and Durham, Durham explained the non-adornment policy to Herrera and asked him to remove the "Union Yes" button and Herrera declined. On being asked again, Herrera replied "I'm not going to take it off. If you want it off, then you take it off." Durham then replied "Let's go to my office." At that point Herrera pushed back from the table, stood up, thrust his fist in the air and yelled "Union up." Herrera testified that he "yelled it pretty loud," and that there then were at least twenty people in the cafeteria, including patients, visitors and other employees.⁵ Medrano did not yell anything. Herrera accompanied Durham to his office where Durham showed him a copy of the dress code policy. Herrera saw its non-adornment provision, took the "Union Yes" button off and gave it to Durham who gave it back to Herrera telling him to go back to work and not wear it again, to which Herrera agreed. No discipline or punishment was imposed. Herrera then returned to the patient room he had been working on and, using the telephone there, called the Union president and told him what had happened. The president told him to put the button back on, which Herrera did and went back to work in the area wearing it, though he knew that to be in violation of the dress code policy and Durham's instructions. Not long thereafter, Durham came by and saw Herrera in the seventh floor hallway, where he was working, and asked him to remove the button, but Herrera refused.⁶ Durham told him to come to his office after lunch. Herrera did so after calling the Union president, who (along with somebody else from the Union) accompanied him to Durham's office. Durham proceeded to suspend Herrera without pay for three days.⁷ No discipline was imposed on Medrano.

The uncontradicted trial evidence reflects that the only "Union Yes" buttons worn by any employee at the Hospital were those worn on November 11,...