                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                                                  In the                                   July 1, 2004
                         United States Court of Appeals                             Charles R. Fulbruge III
                                       for the Fifth Circuit                                Clerk
                                            _______________

                                              m 03-60541
                                            _______________



                                           LARRY SWANSON,

                                                              Plaintiff-Appellant,

                                                 VERSUS

                                    CITY OF BRUCE, MISSISSIPPI,

                                                              Defendant-Appellee.


                                     _________________________

                             Appeal from the United States District Court
                               for the Northern District of Mississippi
                                         m 3:00-CV-195-D
                                   _________________________




Before SMITH, WIENER, AND BENAVIDES,                   Bruce, Mississippi, in 1990 as a part-time pa-
  Circuit Judges.                                      trol officer while still serving as an elected
                                                       constable of Calhoun County, Mississippi, a
JERRY E. SMITH, Circuit Judge:*                        job he has held since 1988. The city is small
                                                       and has only seven patrol officers. Swanson
                   I.                                  worked his way up the rank of assistant chief
   Larry Swanson was hired by the City of              of police, a position he obtained in 1997.

                                                          Swanson did not receive any complaints
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-    from city officials about his performance until
termined that this opinion should not be published     E.J. Bobo, who is black, was hired as police
and is not precedent except under the limited cir-     chief in 1997 following a 3-2 vote in his favor
cumstances set forth in 5TH CIR. R. 47.5.4.
by the city’s aldermen. Swanson claims the               Bobo and Swanson filed separate complaints
two aldermen who voted against Bobo were                 in federal district court. Swanson asserted
alleged to be racist and that, later, several al-        claims pursuant to 42 U.S.C. §§ 1981 and
dermen tried to undermine Bobo because of                1983 and title VII.
his race, making racist comments and
bypassing his authority to direct the work of               The district court granted summary
the officers. The city denies these allegations          judgment to the city with respect to Swanson’s
and contends that Bobo’s performance as chief            claims and partial summary judgment with re-
was poor.                                                spect to Bobo’s. The court found that Swan-
                                                         son had failed to address his First Amendment
   At a January 3, 2000, meeting, the Board of           freedom of association claim and that it failed
Aldermen decided to develop new goals and                as a matter of law. The court further found,
objectives for the police department and to              with respect to his retaliatory and
solicit input from academics and other law en-           discriminatory firing claims, that Swanson had
forcement experts. On February 1, the board              presented no evidence that he was qualified for
adopted new proposed performance goals,                  the assistant chief position or that the change
standards, and job descriptions. The city                in qualifications was motivated by animus
claims these were adopted wholesale from the             against him.
mayor’s recommendation, which was in turn
based on outside advice.                                    Swanson appealed, but his appeal was dis-
                                                         missed for lack of jurisdiction because there
    The new job descriptions required the as-            was no final order. Bobo settled with the city,
sistant chief to be a full-time employee                 and the district court entered a final order dis-
certified as a police officer. Swanson could             missing the suit with prejudice.
not work full-time and fulfill his elective duties
as constable. Also, he was not certified as a               On review, we approach the district court’s
police officer, though he had received some              grant of summary judgment de novo, applying
similar training as a constable.                         the same standards as required of the district
                                                         court. Celotex Corp. v. Catrett, 477 U.S. 317,
   On May 6, the aldermen voted to discharge             324 (1986). The city is entitled to summary
Swanson and Bobo. The letter of termination              judgment if there is no genuine issue of
indicated that “lack of department unity” was            material fact and the city is entitled to
the reason for Swanson’s discharge. Swanson              judgment as a matter of law. FED. R. CIV. P.
was replaced by a certified police officer, who          56(c). The panel, on review, must draw all
was apparently otherwise uninvolved in the               reasonable inferences from the fact in favor of
dispute among Swanson, Bobo, and the board.              the nonmoving party. Flock v. Scripto-Tokai
                                                         Corp., 319 F.3d 231, 236 (5th Cir. 2003).
    Swanson alleges that his firing was in re-
taliation for his support of Bobo, as embodied                                  II.
in public statements before the Board of Al-                Swanson claims that when the city
dermen and in conversations with its members.            terminated him, it violated his First
After filing charges of discrimination with the          Amendment right to freedom of association.
Equal Employment Opportunity Commission,                 Particularly, he alleges that his firing, coupled


                                                     2
with Bobo’s, severed a protected relationship           Swanson and Bobo’s employment relationship
between them. This claim is meritless.                  arise for the purpose of engaging in protected
                                                        speech. Accordingly, the law of the Supreme
   The Supreme Court has recognized two                 Court and this circuit do not recognize the
broad varieties of freedom of association pro-          relationship between Swanson and Bobo as
tected by the Constitution. The first includes          one protected under the freedom of
the right to enter into intimate relationships,         association clause.
including the union of marriage, and to main-
tain other close familial relationships. City of            Swanson also alleges that he was subject to
Dallas v. Stanglin, 490 U.S. 19, 23-24 (1989);          a racially discriminatory firing, as defined by
Zablocki v. Redhail, 434 U.S. 374, 383-86               42 U.S.C. § 2000e-2(a)(1), an element of title
(1978).                                                 VII. The subsection provides that “it shall be
                                                        an unlawful employment practice for an
    Such intimate relationships must at least           employee . . . to discharge any individual . . .
involve “deep attachments and commitments               because of such individual’s race . . . .” Id.
to the necessarily few other individuals with           (emphasis added). That is, the person who is
whom one shares not only a special com-                 discharged must be discharged on account of
munity of thoughts, experiences, and beliefs,           his race, not on account of any third party’s
but also distinctively person aspects of one’s          race. Here, Swanson is white, and no one sug-
life.” Roberts v. United States Jaycees, 468            gests that he was fired for that reason.1 Rath-
U.S. 609, 620 (1984). These relationships               er, at most, Swanson was terminated as an in-
“are distinguished by such attributes as relative       direct result of Bobo’s race. So, Swanson
smallness, a high degree of selectivity in              finds no relief under the plain language of
decisions to begin and maintain the affiliation,        § 2000e-2(a).
and seclusion from others in critical aspects of
the relationship.” Id. The second variety in-               Swanson’s § 1981 claim has more merit,
cludes the right of individuals to associate with       however. The section allows a terminated em-
others for the purpose of engaging in activities        ployee to recover where his firing was in retal-
otherwise protected by the Constitution,                iation for his speech acts in support of the
especially including the First Amendment’s              rights of minorities. Pinkard v. Pullman-Stan-
guarantees of free speech, assembly, and                dard, 678 F.2d 1211, 1229 n.15 (5th Cir.
religion. Id. at 622.
                                                           1
                                                             The closest this court has come to Swanson’s
    Though Bobo and Swanson were                        logic is in Deffenbaugh-Williams v. Wal-Mart
momentarily bound by common speech goals,               Stores, Inc., 156 F.3d 581, 589 (5th Cir. 1998), re-
their relevant relationship is essentially social       instated in relevant part on reh’g en banc, Wil-
                                                        liams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th
and professional in nature.          The tight
                                                        Cir. 1999) (per curiam) (en banc), in which we al-
fellowship among police officers, precious              lowed a white plaintiff to press a claim under 42
though it may be, does not include such “deep           U.S.C. § 2000e-2(a) when discharged on account
attachments and commitments of thoughts,                of her interracial marriage. There, however, al-
experiences, and beliefs” or personal aspects           though the person who was terminated was white,
of officers’ lives sufficient to constitute an          her race nonetheless was the cause of the discrim-
intimate relationship. Id. at 620. Neither did          inatory treatment, if only because her race differed
                                                        from that of her husband.

                                                    3
1980)2; see Foley v. Univ. of Houston Sys.,                 requirements passed by the city, Swanson’s
355 F.3d 333, 339 (5th Cir. 2003). Swanson                  prior service is evidence that he was at least
alleges that he was fired because he supported              minimally qualified to continue in his duties.3
Bobo, a black man, against racist attempts to               Indeed, in his capacity as an elected constable,
undermine him.                                              he had been required to receive the same aca-
                                                            demic and firing range training as typically
    As a protected person under § 1981, Swan-               required of police officers. Accordingly,
son may press a claim for retaliatory firing and            Swanson has stated a prima facie case for a
have that claim considered under the familiar               retaliatory firing.
burden-shifting framework of McDonnell
Douglas Corp. v. Green,. 411 U.S. 792, 802-                    In satisfaction of the second step of the Mc-
03 (1973). To prevail through circumstantial                Donnell Douglas framework, the city offers a
evidence, Swanson must first make a prima                   legitimate non-discriminatory explanation for
facie case by showing that he is a protected                Swanson’s termination: The new standards
person, that he is qualified for the position,              under which Swanson was terminated were
that he was subjected to an adverse em-                     calculated to improve the police department.
ployment action, and that he was replaced by                See McDonnell Douglas, 411 U.S. at 802.
someone outside the protected class. See id.
at 802; Shackelford v. Deloitte & Touche, 190                   The third step of McDonnell Douglas al-
F.3d 398, 404 (5th Cir. 1999).                              lows Swanson to attempt to show, by a
                                                            preponderance of evidence, that the city’s
   Swanson is a protected person, again by                  proffered explanation was mere pretext for re-
virtue of his speech, and he suffered an                    taliation. Id. at 804. He presents evidence
adverse action through his termination. And                 that (1) aldermen stopped speaking to him
he was replaced by someone outside his                      after he had defended Bobo; (2) they
protected class—in this case, by a person who               undermined his authority by discussing police
had no history of agitating in favor of Bobo or             business with his subordinates instead of with
against the board of aldermen. As for his                   him; (3) the adoption of the new job
qualification for the assistant chief position,             requirements was made soon after he agitated
even if he did not fulfill the new formal                   for Bobo; (4) he was not given a full op-
                                                            portunity to meet the city’s new requirements;
   2
      The court in Pinkard explained that “[a] claim        (5) he was fired the same day as Bobo, and
under § 1981 may be based upon retaliatory action           (6) he was not given the opportunity to accept
taken against an employee for the employee’s                a demotion to patrolman. This is sufficient to
lawful advocacy of the rights of racial minorities .
. . .” See also Winston v. Lear Siegler, 558 F.2d
                                                               3
1266 (6th Cir. 1977) (stating that white person                   It would be circular reasoning to assert that
fired for protesting an asserted racially motivated         Swanson was unqualified merely because he did
firing of a non- white may sue under § 1981);               not satisfy the city’s newly-enacted standards. Af-
Caldwell v. Nat’l Brewing Co., 443 F.2d 1044                ter all, it is Swanson’s very claim that the stan-
(5th Cir. 1971) (stating that plaintiff alleging that       dards were promulgated as a pretext for discrim-
he was discharged because he complained about               ination. Whether the standards were a veil for
racially discriminatory employment practices may            discriminatory intent is more properly a question
intentionally bypass EEOC and seek relief under §           for the third step of the McDonnell Douglas bur-
1981).                                                      den-shifting regime, not the first.

                                                        4
create a genuine issue o f material fact as to
whether Swanson suffered a retaliatory
termination, so that matter should go to a jury.

   The summary judgment on the § 1981 claim
is REVERSED. The judgment is otherwise
AFFIRMED. This matter is REMANDED for
further appropriate proceedings.




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