                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 19, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                              No. 05-61157
                            Summary Calendar



                     WILLIE MCLAURIN, et al.,

                       Plaintiff-Appellants,

                                 versus

          THE CITY OF JACKSON FIRE DEPARTMENT, et al.,

                              Defendants,

                THE CITY OF JACKSON FIRE DEPARTMENT,

                        Defendant-Appellee.


                      --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                     USDC No. 3:03-CV-294BN
                      --------------------

Before JOLLY, DENNIS, and CLEMENT Circuit Judges.

PER CURIAM:*

     Plaintiff-appellants appeal the district court’s grant of

summary judgment in favor of defendant-appellees in this 42 U.S.C.

§ 1983 case.   We affirm.

     Plaintiff-appellants are firefights employed by the City of

Jackson Fire Department and are also members of a local union,

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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International Association of Fire Fighters (IAFF).             As candidates

for a promotion to the lieutenant position, they took a test in

1999.     They had been told that the test would consist of a timed

pump test, a written test, and an interview.             Additionally, they

had been informed that if the testing criteria change, they would

be given 21 days notice and that any added or omitted criteria

would have the prior approval of the Department of Justice (“DOJ”).

However, on testing day, they were told of changes to the test,

which had garnered no prior approval by DOJ; furthermore, they

realized the test would not be administered by an industrial

psychologist.     Finally, they allege that non-union members were

allowed to wear identifying pins, and that union members were

treated    differently     on    the   test   day.      Plaintiff-appellants

thereafter    complained    to    their     employer,   the   City,   alleging

discrimination.

     When the City took no corrective action, the firefighters sued

under 42 U.S.C. § 1983, alleging that they were retaliated against

for their first amendment-protected free speech and association.

The City filed a motion for summary judgment, which the district

court granted.     The district court found that the firefighters

failed to identify any speech chilled by the City’s conduct.

Additionally the district court decided that the firefighters had

shown neither an adverse employment action nor a causal connection,




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as required to maintain a prima facie case of retaliation under

Section 1983.

       We review a grant of summary judgment de novo, applying the

same standard as the district court.                    Gowesky v. Singing River

Hospital Systems, 321 F.3d 503, 507 (5th Cir. 2003).                  To prevail on

a First Amendment retaliation claim under § 1983, the firefighters

must show that: (1) they engaged in a constitutionally protected

activity; (2) they suffered an adverse employment action; (3) there

was a causal connection between the two; and (4) there was an

execution of a policy, custom, or practice of the city that caused

the adverse action.          Sharp v. City of Houston, 164 F.3d 923, 932

(5th Cir. 1999).

       We   assume    without    deciding        that   membership    in    a   union

constitutes a protected activity.               However, even assuming arguendo

that   changes   to    the    test    and       irregularities   in   the   testing

procedure qualify as adverse employment actions in the wake of the

Title VII retaliation case of Burlington N. & Santa Fe Ry. Co. v.

White, 126 S.Ct. 2405 (2006), the firefighters fail to establish

the requisite causal connection in that they point to no evidence

that would indicate that their alleged adverse employment actions

were a result of their union membership.                  To establish a causal

connection, they must first show that the decision maker was aware

of the protected activity.           Manning v. Chevron Chem. Co., 332 F.3d

874, 883 (5th Cir. 2003).            In the case at bar, the firefighters


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provide no concrete evidence as to the identity of the decision

maker; even if the alleged decision maker was responsible for the

adverse employment actions, there is no evidence that he was aware

of the firefighters’ union membership.          Beyond decision maker

awareness, they must also show that their protected activity was a

substantial   or   motivating   factor   for   the   adverse   employment

actions.   Morris v. Lindau, 196 F.3d 102, 111 (2d Cir. 1999).

Here, the firefighters offer no evidence that would show that any

alleged decision maker was unhappy with their union membership.

    For the foregoing reasons, we AFFIRM.




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