Herrera v. Medical Center Hosp.

• Decision Date: 05 August 2002
• Docket Number: No. CIV.A. MO-01-CA-026.,CIV.A. MO-01-CA-026.
• Citation: 241 F.Supp.2d 601
• Parties: Urbano HERRERA and Communications Workers of America, Local 6127 v. MEDICAL CENTER HOSPITAL, et. al.
• Court: U.S. District Court — Eastern District of Louisiana

Page 601

241 F.Supp.2d 601

Urbano HERRERA and Communications Workers of America, Local 6127 v. MEDICAL CENTER HOSPITAL, et. al.

No. CIV.A. MO-01-CA-026.

United States District Court, E.D. Louisiana.

August 5, 2002.

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David Van Os, Benjamin Cox, Matthew Gerald Holder, San Antonio, TX, for the Plaintiffs.

William Stacy Trotter, Shafer, Gilliland, Davis, et al, Odessa, TX, for the Defendants.

ORDER AND REASONS

VANCE, District Judge.

Before the Court are plaintiffs' and defendants' cross-motions for summary judgment on plaintiffs' claims challenging the discipline he received for wearing a union button at work. The Court finds that plaintiff Herrera's conduct involved speech on a matter of public concern. The Court also finds that contested issues of fact must be resolved at trial before the Court can conduct the Pickering balance test, which requires weighing the public employer's interest in promoting the efficiency of the services it provides against the employee's interest in engaging in protected speech. Therefore, plaintiffs' and defendants' cross-motions for summary judgment are DENIED. Furthermore, (1) defendants' motion for summary judgment on the issue of whether plaintiffs' constitutional rights were deprived by an official policy is DENIED; (2) defendants' motion for summary judgment on the issue of qualified immunity for each of the individual defendants named in plaintiffs' complaint is GRANTED; and (3) defendants' motion for summary judgment on the issue of plaintiff CWA's standing is DENIED.

I. Background

Plaintiff Urbano Herrera was hired by the Ector County Hospital District d/b/a Medical Center Hospital ("Hospital") as a carpenter on January 13, 1991. The Ector County Hospital District is a political subdivision created by Texas statute, and its Board of Directors is popularly elected by Ector County voters.

In the summer of 1999, Herrera became a labor organizer for Communications Workers of America ("CWA"). Herrera attests that he organized weekly meetings of other Hospital employees at which they discussed their dissatisfaction with working conditions at the Hospital, including problems resulting from the Hospital's retention of a new outside management company. At one of the union meetings, union officials handed out union buttons. The next day, Herrera and about 30 other Hospital employees wore the buttons on their uniforms. The buttons stated "Union Yes." Herrera also wore the pin to work the next two days. The parties dispute the extent to which Herrera's job involved contact with the public and thus whether these pins were seen by either patients or the general public.

On the third day that Herrera wore the union button, Tim Daniels, the Hospital's General Maintenance Supervisor, noticed that Herrera and another employee, Gerardo Medrano, wore union pins. The Hospital's dress code policy contains an anti-adornment provision under which "ONLY pins representing the professional association and the most current hospital service award may be worn." Daniels informed Herrera and Medrano that they were in violation of the dress code policy and asked them both to remove the buttons from their uniforms. Medrano complied, but Herrera refused. Daniels then contacted John Durham, the Hospital's Director of Engineering, who confronted Herrera in the cafeteria and ordered Herrera to take off the button. Herrera again refused, and Durham ordered Herrera to come to his office, which he did. Durham explained to Herrera that the Hospital's dress code policy did not permit employees to wear buttons. Herrera then agreed to take off the button. Durham also told Herrera that he would be reprimanded if he violated the dress code policy again.

After leaving Durham's office, Herrera called Clay Everett, President of CWA Local 6127, and told him what had happened. Everett informed Herrera that the Hospital could not order him to remove the button. Herrera put his button back on. Later that day, Durham saw Herrera and again asked him to take off the button. Herrera refused and Durham ordered Herrera to come to his office, where Herrera continued to refuse to remove his button. Durham told Herrera to take a work break and return in 30-45 minutes. Herrera returned to Durham's office with Everett and Annette Armstrong, the Executive Vice President of the CWA local. Durham informed Herrera that the Hospital would suspend him for three days without pay for his refusal to take off the button. The suspension has been recorded as a permanent disciplinary mark on Herrera's employment record. One month after the suspension, Herrera was informed that his annual raise would be only 3%, as opposed to the usual 4%, because of the dress code violation. In a job evaluation conducted at that time, Herrera received high marks in every category except for his violation of the dress code policy.

The record indicates that Herrera may be the only Hospital employee ever disciplined for a violation of the anti-adornment policy. Herrera appealed the suspension to the Hospital's grievance committee, chaired by David Meisell, the Director of Human Resources for the Hospital. Herrera had a hearing on December 28, 1999, and the committee affirmed Herrera's suspension.

On February 20, 2001, CWA and Herrera sued the Hospital, Ector County Hospital District Board of Directors, the elected members of the Board of Directors (Judy Hayes, Abraham Torres, Joe C. Buice, William Hetzler, James M. Gaddy, Mary Thompson and Virgil Trower) and some managers and supervisors within the Hospital (Tim Daniels, John Durham, David Meisell, John Chamberlain, Craig Covington, J. Michael Stephans and William W. Webster). Plaintiffs brought the action under 42 U.S.C. § 1983 alleging violations of state law and the First and Fourteenth Amendments, and seeking injunctive, equitable, and declaratory relief, and attorneys' fees. Plaintiffs moved for summary judgment. Defendants filed a motion to dismiss, and, in the alternative, a motion for summary judgment.

II. Discussion

A. Legal Standard

Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, ill U.S. 317, 322-23, 106 S.Ct. 2548, 2551, 91 L.Ed.2d 265 (1986). The court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir.1990); Anderson v. Liberty Lobby, Inc., ill U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The moving party bears the burden of establishing that there are no genuine issues of material fact. Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1445 (5th Cir. 1993). A factual dispute precludes a grant of summary judgment if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. See Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 2001 WL 1650961 (5th Cir. 2001) (citations omitted).

If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. Celotex, 477 U.S. at 325, 106 S.Ct. at 2552; Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. Celotex, All U.S. at 324,106 S.Ct. at 2553.

Here, defendants filed a motion to dismiss, or, in the alternative, a motion for summary judgment under Rule 56. The Court will treat defendants' motion as one for summary judgment because matters outside of the pleadings have been presented to and not excluded by the Court. See FED. R. CIV. P. 12(b)(6) and 12(C).

B. First Amendment and Public Employee Speech

At the heart of these cross-motions for summary judgment is whether the Hospital's decision to discipline Herrera violates Herrera's rights to freedom of speech or freedom of association under the First Amendment.¹ The Hospital argues that it was merely enforcing a content-neutral anti-adornment policy. The policy at issue, which was implemented in August 1993 and revised in July 1999, states that "ONLY pins representing the professional association and the most current hospital service award may be worn."² (Def.'s Mot. for Summ. J, App. at Ex. Al.) The policy requires that male employees who regularly come in contact with patients and/or visitors wear a dress shirt, pants, and tie. Id, As a carpenter, Herrera is instead subject to the Hospital's dress code that pertains to carpenters, electricians, cabinet-makers and plumbers. Herrera's uniform consists of a gray shirt and gray pants. (Pl.'s Mot. Summ J, App. at 49.)

Defendants assert that the rule proscribes almost all pins and therefore is not content-based. The record indicates 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. The Hospital's Director of Human Resources asserted in his affidavit that employees can seek authorization from the Dress Code Committee and/or the Administrator to wear pins on a case-by-case basis. (Def.'s Mot. for Summ. J, App. at Ex. A.) The written dress code policy does not provide a procedure for seeking such an exception. (Def.'s Mot. for Summ. J., App. at Ex. Al.) Nor is it suggested that Herrera would have been given permission to wear his pin had he asked for authorization to do so.

1. The Connick/Pickering Analysis

The...