ORDER AND REASONS
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
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 3(M5 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 in-junctive, 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,
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,
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
1. The Connick/Pickering Analysis
The government may not condition public employment on a basis that violates the First Amendment rights of its employees.
Connick v. Myers,
To determine whether a public employer’s action has impermissibly infringed free speech rights, the Fifth Circuit employs a four-step analysis.
Branton v. City of Dallas,
For plaintiffs’ free speech claims, then, the first step is to determine whether the employee spoke “as a citizen upon matters of public concern” rather than “as an employee upon matters only of personal interest.”
Connick,
The Fifth Circuit has identified certain categories of speech that touch upon the public concern. For example, “associating with political organizations and campaigning for a political candidate [relates] to a matter of public concern.”
Vojvodich v. Lopez,
The Fifth Circuit recognizes that some speech contains both public and private elements. In cases of “mixed speech,” the Fifth Circuit has ruled that courts are “bound to consider the
Connick
factors of content, context and form, and determine whether the speech is public or private based on these factors.”
Teague,
Although the Fifth Circuit has never expressly so held, all signs point in the direction of finding that a pin pertaining to labor organizing is of public concern. No court has held that such speech is of private concern, and the Fifth Circuit has “assumed without deciding” that such speech is of public concern.
INS,
•Similarly, the Supreme Court has stated that “labor relations are not matters of mere local or private concern.”
Thornhill v. State of Alabama,
The Court finds that Herrera’s speech is of public concern, and it reaches this conclusion through an analysis of the
Connick
factors of content, form, and context. In terms of content, the speech was public in that it encouraged Hospital workers to join a union. On its face, “Union Yes” pertains to labor relations in general; its relation to Herrera’s own terms of employment is secondary and indirect. The form of the speech is unquestionably public, as it took the form of a pin. Pins have long been held a public forum for expression.
Smith v. United States,
3. Step Two: The Pickering Balance Test
Because the Court holds that Herrera’s speech touches upon a matter of public concern, the Court advances to step two of the analysis, the so-called
Pickering
balance test. In step two, the government bears the burden of justifying its adverse employment action by showing that its interest in promoting the efficiency of the services it provides outweighs the employee’s interest in engaging in the protected speech.
Rankin v. McPherson,
A number of factual issues must be resolved in this case before the Court may perform the
Pickering
balancing test. First, the evidence conflicts as to whether Herrera’s employment involves a significant amount of interaction with the public. When considering the validity of anti-adornment policies both as applied and on their face, courts consistently look to the nature and extent of the public employee’s interaction with the public. In the military and law enforcement context, for example, the Fifth Circuit has recognized the importance of conveying neutral authority to the general public.
Daniels v. City of Arlington,
Plaintiffs assert that Herrera’s employment involves minimal and infrequent contact with the public. (Pl.’s Complaint at 5; Pl.’s Mot. for Summ. J., App. at 49.) Defendants challenge that characterization. (Def.’s Reply to Pl.’s Mot. for Summ. J. at 4.) The Hospital’s Director of Human Resources states in his affidavit that “the Hospital’s carpenters regularly come into contact with other hospital personnel and the public,” noting that thousands of people from the community enter the Hospital. (Def.’s Mot. for Summ. J., App. at Ex. 1.) Virtually no evidence indicates the extent to which the “Union Yes” pins were visible to patients or to the general public.
Were Herrera a policeman for the city, or even a doctor at the Hospital, the Court could perhaps assume that his employment entailed significant interaction with the public. The same is not true for a hospital carpenter. Because the nature and extent of interaction with the public is an integral part of the Pickering balance test, and because the evidence conflicts on the extent of Herrera’s contact with the public, the Court finds that the issue must be resolved at trial.
A second outstanding issue of fact involves whether Herrera’s speech caused or threatened to cause a disruption of the Hospital’s efficient functions. In
Rankin,
the Supreme Court held that “interference with work, personnel relationships, or the speaker’s job performance can detract from the public employer’s function.”
Rankin,
There are no doubt some contexts in which the harm from the challenged speech is obvious. On this record, however, the Court cannot find that to be the case. Here, hospital managers gave virtually identical statements (in affidavits apparently drafted by their lawyers) that the purpose of the dress code policy is “to have an efficient staff... efficiently provide healthcare services... promote uniformity, foster discipline, encourage esprit de corps, [and] avoid divisiveness.” (Def.’s Mot. Summ. J., App. at Exs. A, C, D, E, F, G, H, I, J, K, L, N, and 0.) The Hospital’s Director of Human Resources specifically asserted that the wearing of pro-union or anti-union pins would “create factionalism and interfere with discipline.” (Def.’s Mot. Summ. J., App. at Ex. A.) Because these conclusory statements were made in affidavits, as opposed to in depositions or on the witness stand, there has been no opportunity to flesh them out or expose them to cross-examination. Further, there is contradictory evidence on the disruptive nature of the union pins. On November 9, 1999, roughly 30 Hospital employees wore “Union Yes” pins without apparent disruption. (Pl.’s Mot. Summ. J., App. at 50.) Furthermore, there is no evidence that Herrera’s productivity suffered as a result of his pin. In an evaluation of his job performance, Herrera received high marks for everything except his violation of the dress code policy. (Pl.’s Mot. Summ. J., App. at 133.) Herrera’s supervisor wrote that “other than the failure to comply with the dress code request, [Herrera] is a positive asset to the department.” (Pl.’s Mot. Summ. J., App. at 131.) To justify awarding Herrera only a 3% annual pay raise (as opposed to the usual 4%), the Hospital cited only Herrera’s dress code violation but no other concerns with his productivity. (Pl.’s Mot. Summ. J., App. at 51.) The Court therefore finds that a trial in which Hospital personnel provide evidence in their own words of how union pins impact or threaten to impact the operations of the hospital is necessary before the Pickering balancing test can be properly performed.
Defendants place great reliance on
INS
and
Daniels
to assert that summary judgment is proper. It is true that in these cases the Fifth Circuit allowed the INS and the police department to satisfy their burden by asserting that uniform regulations are critical to obedience and commitment.
INS,
The Fifth Circuit has recognized that the existence of issues of material fact necessitates further evidentiary hearing before a court may conduct the requisite
4. Steps Three and Four
The third and fourth steps of the
Connick/Pickering
analysis are factual in nature.
Branton,
The fourth step of the
Connick/Picker-ing
analysis is deciding whether the employer would have made the same employment decision in the absence of the protected speech or association.
Branton,
To summarize, the Court has found, first, as a matter of law, that plaintiffs speech is of public concern; second, that an evidentiary hearing is required before the Court can conduct the Pickering balance test; third, that plaintiffs speech was a substantial or motivating factor in the adverse employment action; and, fourth, that the employer would not have made the same employment decision in the absence of the protected speech or association.
C. Liability & Immunities
1. Local Government Liability
Local government entities may be held liable under 42 U.S.C. § 1983 only for a deprivation of rights inflicted pursuant to an official policy or custom.
Board of the County Commissioners of Bryan County, Oklahoma v. Brown,
Defendants argue that plaintiffs cannot point to a specific, official policy that has deprived plaintiffs of their constitutional rights. After a trial, the Court may ultimately find that the Hospital infringed upon plaintiffs’ constitutional rights by enforcing the Hospital dress code and anti-adornment policy. The dress code and anti-adornment policy is clearly an official policy — it was imple
2. Qualified Immunity
Defendants assert that each of the individuals named in the suit are entitled to qualified immunity.
7
Qualified immunity shields government officials from civil liability for damages based upon the performance of discretionary functions if the acts were objectively reasonable in light of then clearly established law.
Thompson v. Upshur County,
Here, the Court finds that the decision to discipline Herrera for violating an anti-adornment policy does not violate clearly established law. Plaintiffs fail to cite to any cases to the contrary. Meanwhile, each named defendant submitted an affidavit stating that he believed that the no-pin policy was constitutional because it did not target political or unpopular speech. (Def.’s Mot. Summ. J., App. at Exs. A-O.) It is reasonable to assume that the establishment and enforcement of an anti-adornment policy does not violate clearly established law.
D. CWA Standing
Defendants assert that CWA lacks standing. An association may sue based on injuries to itself or based on injuries to its members.
Texans United for a Safe Economy Education Fund v. Crown Central Petroleum Corporation,
Here, CWA asserts an injury-in-fact. Plaintiffs assert that Herrera’s suspension had a negative impact on CWA’s ability to accomplish its goals. (Pl.’s Complaint at 7.) Clay Everett, President of CWA Local 6127, asserted that prior to Herrera’s suspension, 25 or more Hospital employees would attend union meetings. After the suspension, attendance at meetings “immediately dropped off’ to only about 10 or 12 employees. (Pl.’s Mot. for Summ. J., App. at 53.) This injury is concrete and particularized; it is not hypothetical. The Court is also persuaded that the injury is traceable to defendants’ actions. Finally, the injunction requested is capable of redressing the injury. Therefore, plaintiff CWA has standing to sue on its own behalf.
An association has standing to sue on behalf of its members when (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members.
Hunt v. Washington State Apple Advertising Comm’n,
III. Conclusion
For the foregoing reasons, plaintiffs’ and defendants’ cross-motions for summary
Notes
. The parties have not briefed and the Court expresses no opinion as to plaintiffs’ claims under the Texas Constitution and state statutory law.
. The dress code contains a policy statement which provides:
"The uniform or clothing worn by the employee reflects pride in Medical Center Hospital and the service given to the patient.
The employee's responsibility is to maintain high standards by presenting a neat, clean, well-groomed appearance, at all times. It is the Department Manager’s and/or the Supervisor's responsibility to enforce the dress code uniformly throughout Medical Center Hospital.”
(Def.’s Mot. for Summ. J., App. at Ex. Al.)
. When a plaintiff brings a freedom of association claim arising from union organization
.
See also Branton,
... See also Teague,
.
See also McGill v. Board of Educ.,
. Plaintiffs do not state in the ■ Complaint whether these individuals are named in their official or individual capacities, but indicate in their response to defendants’ motion for summary judgment that they are being sued in their individual capacities. In suits brought against state officials in their individual capacity, the officer may raise in defense issues of absolute or qualified immunity.
Hafer v. Melo,