     Case: 13-30931      Document: 00512751276         Page: 1    Date Filed: 08/29/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                      No. 13-30931
                                                                                FILED
                                                                          August 29, 2014
                                                                           Lyle W. Cayce
COREY LAWSON and STANLEY HALL,                                                  Clerk

                                                 Plaintiffs–Appellants,
v.

CITY OF MONROE and CHARLES WESTROM,

                                                 Defendants–Appellees.



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:12-CV-2233


Before STEWART, Chief Judge, DENNIS and ELROD, Circuit Judges.
PER CURIAM:*
       This case arises out of the terminations of two City of Monroe Sewer
Department employees, Corey Lawson and Stanley Hall (“Plaintiffs”).
Plaintiffs contend that they were terminated in reprisal for their union
activities and in violation of the “just cause” provision of the collective
bargaining agreement (“CBA”). The City of Monroe and Charles Westrom
(“Defendants”) assert that the terminations were not the result of anti-union
animus, but that Plaintiffs were terminated because they violated work rules



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 13-30931
and policies numerous times. The district court granted summary judgment
in favor of Defendants. We AFFIRM.
                                       I.
      Lawson and Hall began working at the City of Monroe Sewer
Department (“City”) in 1999 and 1998, respectively. In 2007, they became
members and elected officers of the Local 2388 of the American Federation of
State, Country, and Municipal Employees (“AFSCME”).            That same year,
Westrom became the City’s Sewer Manager. In this position, Westrom had
supervisory authority over Sewer Department employees, including over
Plaintiffs. Specifically, he was hired to help manage the Sewer Department
more effectively and efficiently because the City was concerned about the
exorbitant costs of overtime. The City also sought Westrom’s help in enforcing
the Employee Handbook Work Rules.
      Plaintiffs assert that they were good employees and never received
warnings before Westrom became their manager.             Several months after
Westrom was hired, Plaintiffs began receiving disciplinary write-ups for
violating Employee Handbook Work Rules. Lawson received a total of five
warnings and Hall received a total of eight warnings. Plaintiffs allege that
Westrom gave them these warnings because he did not like that they were
members of the union.
      Lawson received his first corrective action in 2008, when he was verbally
warned for disrupting the Sewer Department’s workflow and adversely
affecting   employee    morale   by   encouraging   employees      to   disregard
management directives. In early 2009, Lawson was given a verbal warning for
failing to call thirty minutes prior to missing regularly scheduled work, in
violation of the Handbook. This warning stated that “Lawson admitted the
problem and said that he will not do it anymore.” Later that week, Lawson
received a written warning for remaining on Sewer Department property after
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                                 No. 13-30931
his shift ended. The warning noted that there is an official policy that “[a]ll
employees have previously been made aware of . . . and there has been a memo
posted.” In August 2009, Lawson was again verbally warned for not providing
thirty minutes advance notice of being absent from work, in violation of the
Handbook. His next warning came about two years later, in May 2011, when
he received a written warning for not cleaning sewer lines when he was
instructed to do so. The warning explained that “[f]ailure to heed this warning
may result in disciplinary action including discharge.”
      Hall was also given numerous warnings for violations of Handbook
Rules. In March 2009, Hall was given a warning for insubordination after he
refused a work order.      The warning stated that “Hall demonstrated an
uncooperative attitude” and that he was being written up “for being
disobedient and because of his insubordinate attitude.” In June 2009, Hall was
issued a written warning when he failed to appear for a temporary shift
change. In August 2009, Hall received two written warnings. The first was
issued after Westrom had given Hall permission to attend a union meeting
while on duty, conditioned upon Hall’s immediate response to any pager notice
of a sewer call. Hall did not respond to a pager notice for over two and a half
hours. The warning explained that Hall “acted irresponsibly toward his job by
providing untimely service to the citizens of Monroe” and “[d]amages to
property and health could have resulted from his actions.” The second warning
was issued after Hall was absent from work for four hours without clocking
out. The warning stated that the “Sewer Department has a policy requiring
all employees to clock out any time they leave the yard of the job. This is being
explained again to Mr. Hall.”
      Hall received a number of other warnings. In September 2010, Hall was
given a written warning for being late for work on two occasions and he was
given a written warning for leaving the job site without his supervisor’s
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                                 No. 13-30931
approval. In May 2011, Hall received another written warning for failure to
clean sewer lines as instructed. The warning stated that “[f]ailure to heed this
warning may result in disciplinary action including discharge.”
      In July 2011, Westrom discovered that two employees’ work orders did
not coincide with their vehicle GPS tracking system, one of the employees being
Lawson. After more investigation, Westrom learned that several employees
were leaving the work site during the work shift in their personal cars without
clocking out.    These employees included Plaintiffs and two non-union
employees.
      On the basis of this violation, Westrom issued Plaintiffs warnings on
August 22, 2011, and set a pre-disciplinary hearing for the next day. Westrom
charged Hall with violating Rule 17 – Leaving the Work Area during the work
shift without permission; Rule 18 – Failure to punch out when leaving the work
area for personal reasons during the work day; Rule 19 – Failure to follow City
job instructions; and Rule 27 – Falsifying City Records. This warning also
listed the seven previous warnings Hall had received, noting that “[o]n
multiple occasions Stanley Hall left his work area in his personal vehicle. Mr.
Hall failed to punch out when leaving his work area as required by Sewer Dept.
policy. . . .” The warning explained that Hall’s action “left [the City] without
sewer stoppage coverage for periods of time.” Westrom charged Lawson with
violating Rule 19 – Failure to follow City job instructions; Rule 26 –
Insubordination; and Rule 27 – Falsifying City Records. The warning specified
that “Lawson did not do his assigned job and falsified paperwork showing that
he had done the work.”
      Following the pre-disciplinary hearings for Plaintiffs, the City
discharged Lawson and Hall for violating the City Employee Handbook Work
Rules cited in their respective Employee Warning Records. Westrom also
conducted pre-disciplinary hearings for the two non-union employees.
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Westrom recommended the City of Monroe discharge both of the non-union
employees “on the same date and for the same reasons the City discharged Mr.
Lawson and Mr. Hall . . . .” However both non-union employees resigned before
the City could discharge them.
      Plaintiffs filed their original complaint in August 2012, claiming that
they were terminated in retaliation for their union participation in violation of
the First Amendment, as well as Louisiana Constitution art. I, § 7 (freedom of
speech), § 9 (right to assemble peaceably/petition government), and art. X, § 10
(freedom of association). Plaintiffs further claimed the City was arbitrary and
capricious in terminating them, and that there was no “just cause” for their
terminations; thus, Plaintiffs claimed their union’s CBA had been breached,
and they had been denied substantive due process under the Fourteenth
Amendment and under Louisiana Constitution art. I, § 2.
      Plaintiffs contend that they were subjected to disciplinary actions and,
ultimately, terminated because of Westrom’s anti-union animus. In support of
these allegations, Plaintiffs submitted the following evidence. When Westrom
issued the November 10, 2008, verbal warning, Lawson testified that Westrom
warned him not to coerce other employees to rebel against management
decisions within the Sewer Department. Lawson testified that in January
2009, Westrom held Lawson’s paycheck and instructed him to “quit talking to
the other employees about union business.”          Westrom testified that in
December 2008, he had “concerns” about Hall “stirring up the men” and he
spoke with Hall about these concerns.       Plaintiffs also point to Westrom’s
personal notes from April 22, 2008, to July 6, 2009, in which Westrom recorded
several statements Plaintiffs alleged to be stereotypical anti-union comments.
These comments were that Lawson was the “primary instigator” of a dispute
about the surveillance cameras in the break room; “many of the problems that


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                                  No. 13-30931
I have had with the union have been instigated by Corey Lawson”; and
“Stanley Hall was one of the ringleaders.”
      The district court granted summary judgment in favor of Defendants.
The district court then dismissed with prejudice Plaintiffs’ claims based on the
federal and state constitutions and federal statutory law.        To the extent
Plaintiffs had asserted National Labor Relations Act (“NLRA”) and Labor
Management Relations Act (“LMRA”) claims under state law, the district court
declined to exercise supplemental jurisdiction and dismissed those claims
without prejudice.
                                       II.
      We review de novo a district court’s grant of summary judgment,
applying the same standard as the district court. Ford Motor Co. v. Tex. Dep’t
of Transp., 264 F.3d 493, 498 (5th Cir. 2001). Summary judgment is proper
when the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).
“A genuine issue of material fact exists when the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Gates v. Tex.
Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 417 (5th Cir. 2008) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). We may “affirm on
any ground supported by the record, including one not reached by the district
court.” Ballew v. Cont’l Airlines, Inc., 668 F.3d 777, 781 (5th Cir. 2012) (citing
Moncrief Oil Int’l, Inc. v. OAO Gazprom, 481 F.3d 309, 311 (5th Cir. 2007)).
                                       III.
      Plaintiffs argue that summary judgment in favor of Defendants was
inappropriate because there are genuine issues of material fact as to whether
Westrom terminated them because of their union activities and whether
Plaintiffs were discharged for “just cause.”
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                                  No. 13-30931
                                       A.
      Plaintiffs seek relief under 42 U.S.C. § 1983, which creates a private
cause of action for violations of federal rights. In order to establish a § 1983
claim, Plaintiffs must establish: (1) that Defendants deprived Plaintiffs of
rights protected under federal law or the United States Constitution; (2) that
Defendants’ actions were under color of state law or local law; and (3) that
Defendants’ actions caused Plaintiffs’ damages. See Victoria W. v. Larpenter,
369 F.3d 475, 482 (5th Cir. 2004).
                                        1.
      Plaintiffs argue that they were deprived of their freedom of association
protected by the First Amendment, which “encompasses the right of public
employees to join unions and the right of their unions to engage in advocacy
and to petition government in their behalf.” Prof’l Ass’n of Coll. Educators,
TSTA/NEA v. El Paso Cnty. Cmty. Coll. Dist., 730 F.2d 258, 262 (5th Cir.
1984). To prevail on a First Amendment retaliation claim, Plaintiffs must
show (1) that Plaintiffs suffered an adverse employment action; (2) that
Plaintiffs’ interest in associating outweighed Defendants’ interest in efficiency;
and (3) that Plaintiffs’ association with the union was a substantial or
motivating factor in the adverse employment action. Hitt v. Connell, 301 F.3d
240, 246 (5th Cir. 2002).
      However, even assuming that Plaintiffs established a prima facie case,
summary judgment in favor of Defendants is proper because Defendants here
have successfully established a Mount Healthy affirmative defense. In Mount
Healthy City School District Board of Education v. Doyle, the Supreme Court
held that Defendants could escape liability by showing that they would have
taken the same action even in the absence of the protected conduct. 429 U.S.
274, 287 (1977). “‘[E]ven if we assume the exercise of protected first
amendment activity played a substantial part in the decision to terminate an
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                                 No. 13-30931
employee, the termination is not unconstitutional if the employee would have
been terminated anyway.’” Gerhart v. Hayes, 217 F.3d 320, 322 (5th Cir. 2000)
(quoting White v. South Park Indep. Sch. Dist., 693 F.2d 1163, 1169 (5th Cir.
1982)).
      Defendants have provided unrefuted summary judgment evidence that
Hall and Lawson would have been terminated whether or not they were
associated with the union. According to the 1996 City of Monroe Employee
Handbook, violation of Rule 27, falsifying City records, could result in
discharge upon the first offense. For the July 2011 incident, Plaintiffs and the
non-union employees were charged with violation of Rule 27. Westrom sought
to terminate Plaintiffs and the non-union employees. The only reason non-
union employees were not terminated in this instance was because they
resigned before Westrom had a chance to terminate them. Accordingly, the
district court did not err in granting summary judgment on Plaintiffs’ First
Amendment claim.
                                       2.
      Plaintiffs assert that their substantive due process rights were violated.
To state a violation of substantive due process under the Fourteenth
Amendment, “the plaintiff must show . . . (1) that he had a property
interest/right in his employment, and (2) that the public employer’s
termination of that interest was arbitrary or capricious.” Lewis v. Univ. of Tex.
Med. Branch of Galveston, 665 F.3d 625, 630 (5th Cir. 2011).
      Applying the first prong of a substantive due process analysis, Plaintiffs
have demonstrated that they have a property interest in their employment
because the CBA requires that union employees be terminated with cause. See
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). However, they
cannot establish the second prong that the City acted arbitrarily or
capriciously. In order to meet this second prong, Plaintiffs must show that the
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decision was “made without a rational connection between the known facts and
the decision or between the found facts and the evidence.” Meditrust Fin.
Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 215 (5th Cir. 1999)
(quotation marks omitted). It is undisputed that Plaintiffs violated Handbook
Rules for which the appropriate disciplinary action was discharge. Thus, there
was a rational connection between the disciplinary action and the violation.
                                       3.
      Plaintiffs also assert that the City violated certain sections of the NLRA.
Specifically, Plaintiffs argue that: (1) the City made unilateral changes in
terms and conditions of employment in violation of Section 8(a)(1) and (5) of
the NLRA; (2) the City denied union representation at investigation interviews
in violation of Section 7 of the NLRA; and (3) the City engaged in surveillance
of union employees in violation of Section 8(a)(1) of the NLRA. However, we
lack jurisdiction over Plaintiffs’ NLRA claims because the Supreme Court has
held that the National Labor Relations Board (“NLRB”) has exclusive
jurisdiction over unfair labor practices under the NLRA. Int’l Longshoremen’s
Ass’n, AFL-CIO v. Davis, 476 U.S. 380, 397 (1986) (“When an activity is
arguably subject to § 7 or § 8 of the [NLRA], the States as well as the federal
courts must defer to the exclusive competence of the [National Labor Relations]
Board.” (internal quotation marks omitted)). We would have jurisdiction over
an appeal from a final judgment of the NLRA under 29 U.S.C. § 160(f).
However, Plaintiffs have not asserted, and the record does not show, that they
first filed their NLRA claims with the NLRB. Accordingly, the district court
was correct in granting summary judgment on Plaintiffs’ NLRA claims.
                                       B.
      Plaintiffs also allege that Defendants breached the CBA by terminating
their employment without just cause. This claim arises under Section 301(a)
of the LMRA. See Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994)
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(“Section 301 of the LMRA provides the requisite jurisdiction and remedies for
individual employees covered under a collective-bargaining agreement
between that individual’s employer and the union.”). However, the LMRA
exempts states and political subdivisions, including municipalities, from suits
under the LMRA. 29 U.S.C. § 152(2); see Johnson v. City of Monroe, No. 06-
0635, 2007 WL 1521436, *6 (W.D. La. May 21, 2007) (“[F]ederal courts cannot
create a cause of action against a municipal employer and union when such
claims are clearly exempted from § 301 coverage.”); see also 29 U.S.C. § 142(3)
(Under the LMRA, “[t]he terms . . . ‘employer’ [and] ‘employee’ . . . shall have
the same meaning as when used in [the National Labor Relations Act].”); 29
U.S.C. § 152(2) (“The term ‘employer’ . . . shall not include . . . any State or
political subdivision thereof . . . .”). Because Defendants are exempt from the
LMRA, summary judgment was proper on this claim.
      AFFIRMED.




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