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

                                                                            FILED
                                                                           May 29, 2008

                                                                      Charles R. Fulbruge III
                                       No. 07-30524                           Clerk


ELIZABETH RUTHERFORD; DONNA LIMA; REBECCA SHEPLER;
HAROLD BURNS; MARVELLE DAUTERIVE; JIM QUAID

                                                  Plaintiffs-Appellants

v.

EDMOND J MUNIZ; CITY OF KENNER

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:06-CV-10702


Before JONES, Chief Judge, and BARKSDALE and STEWART, Circuit Judges.
PER CURIAM:*
       Through this Federal Rule of Civil Procedure 54(b) interlocutory appeal,
Appellants, former City of Kenner employees, challenge the adverse summary
judgment awarded against their patronage-dismissal claims.                     At issue is
whether a genuine issue of material fact exists on whether they were terminated



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-30524

from their employment in retaliation for their political support of the City’s
previous mayor. AFFIRMED and REMANDED.
                                         I.
      Appellants were employed by the City, while Phil Capitano was its mayor;
they supported him during his reelection campaign. Edward J. Muniz won that
election, however. He terminated Appellants’ employment when he took office.
      Appellants filed this action, alleging, inter alia, that Mayor Muniz:
determined, prior to taking office, which employees did not support his
campaign; and terminated Appellants’ employment because they supported
former-mayor Capitano.       Among other claims, Appellants asserted their
terminations were “patronage dismissals”, violating their constitutional rights
to support a political candidate via discourse and campaigning.
      After a hearing, the district court, from the bench, granted summary
judgment against the patronage-dismissal claims, concluding Appellants failed
to raise a genuine issue of material fact on whether their terminations were in
retaliation for their political activity. Final judgment for those claims was
entered pursuant to Rule 54(b). (The patronage-dismissal claims are the only
claims dismissed pursuant to the Rule 54(b) final judgment and properly raised
in this interlocutory appeal; accordingly, only those claims are addressed here.)
                                        II.
      A summary judgment is reviewed de novo, applying the same standard as
did the district court. E.g., Wheeler v. BL Dev. Corp., 415 F.3d 399, 401 (5th Cir.
2005). Such judgment is appropriate if there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
The first prong of this two-part test is in issue.


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      “We resolve doubts in favor of the nonmoving party and make all
reasonable inferences in favor of that party.” Dean v. City of Shreveport, 438
F.3d 448, 454 (5th Cir. 2006). No genuine issue of material fact exists, however,
if, based on the summary-judgment evidence, no reasonable juror could find for
the nonmovant. E.g., Jenkins v. Methodist Hosps. of Dallas, Inc., 478 F.3d 255,
260 (5th Cir.), cert. denied, 128 S. Ct. 181 (2007).
      Appellants maintain the summary judgment against their patronage-
dismissal claims was improper because: they had no opportunity for discovery;
and, in the alternative, a genuine issue of material fact exists on whether they
were terminated for supporting the former mayor.         These contentions are
without merit, as discussed below.
                                        A.
      Appellants first maintain summary judgment was improper because it was
granted before they conducted discovery.        Assuming they did not conduct
discovery (Appellants, however, conceded at oral argument here that they did
conduct some discovery), they complained of their lack of discovery at the
summary-judgment hearing. This notwithstanding, for the following reasons,
the judgment was not premature.
      Upon a summary-judgment movant’s showing the absence of a genuine
issue of material fact, a nonmovant bears the burden of showing such an issue
for trial. E.g., Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 163-64 (5th
Cir. 2006). A district court can deny summary judgment or order a continuance
for discovery, under Rule 56(f), if the nonmovant shows by affidavit it cannot yet
present facts essential to justify its opposition to summary judgment. FED. R.
CIV. P. 56(f); see Adams, 465 F.3d at 162. “A non-movant seeking relief under


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Rule 56(f) must show: (1) why he needs additional discovery and (2) how that
discovery will create a genuine issue of material fact.” Adams, 465 F.3d at 162.
      Appellants’ opposition to summary judgment will be assumed to include
their seeking discovery.     Nevertheless, as the district court stated at the
summary-judgment hearing, “[Appellants did not supply] anything under [Rule]
56(f) that would suggest that these terminations were based on . . .
impermissible constitutional grounds”. As such, Appellants did not meet their
burden. See id. (“A party ‘cannot evade summary judgment simply by arguing
that additional discovery is needed,’ and may not ‘simply rely on vague
assertions that additional discovery will produce needed, but unspecified, facts.’”
(footnotes omitted)). Accordingly, the district court did not abuse its discretion
in not denying summary judgment due to Appellants’ asserted lack of discovery.
                                        B.
      In the alternative, Appellants contend summary judgment was improper
because their summary-judgment evidence raises a genuine issue of material
fact on Mayor Muniz’ motive for terminating their employment. They failed,
however, to produce such evidence.
      “[T]ermination of employees for political reasons is presumptively violative
of the First Amendment”. Correa v. Fischer, 982 F.2d 931, 933 (5th Cir. 1993).
Along this line, “an essential element to the plaintiffs’ case is demonstrating that
the termination was politically motivated”. Id. (citations omitted). “Prima facie
proof of a constitutional violation must include evidence of impermissible
motive.” Tanner v. McCall, 625 F.2d 1183, 1193 (5th Cir. 1980) (citations
omitted). In sum, to survive summary judgment, Appellants were required to
produce sufficient evidence to create a genuine issue of material fact on whether


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their terminations were motivated by an intent to retaliate against them for
their political support of the former mayor. See id.
      Appellants rely on affidavits they contend prove “the reasons given to
justify termination of the [Appellants] were merely pretext”. Even assuming the
affidavits establish Defendants’ reasons for Appellants’ terminations are false,
that is insufficient to create a genuine issue of material fact concerning political
motivation. See Dudley v. Angel, 209 F.3d 460, 463 n.5 (5th Cir. 2000) (stating
whether plaintiff was terminated for the reason provided by defendant “might
present a disputed fact, but it is not material to a claim of a constitutionally
infirm motive”); see also Tanner, 625 F.2d at 1193-94 (explaining plaintiff’s
burden on constitutional-retaliation claim is not met by disproving common
reasons for termination).
      Pursuant to our de novo review of the summary-judgment record, and as
the district court stated, “[Appellants presented no evidence to] suggest that
these terminations were based on . . . impermissible constitutional grounds”.
Accordingly, no genuine issue of material fact exists on whether their
terminations were motivated by political retaliation. See Garcia v. Reeves
County, Tex., 32 F.3d 200, 204 (5th Cir. 1994) (holding “plaintiffs cannot
establish a fact dispute simply by proving up a contested political race and
subsequent firings”).
      In this regard, Appellants contend summary judgment is improper because
motive is at issue. It goes without saying that a disputed motive, alone, does not
make summary judgment improper; there must be a genuine issue of material
fact. See, e.g., Idoux v. Lamar Univ. Sys., No. 93-5163, 1994 WL 558880, at *3
n.9 (5th Cir. 28 Sept. 1994) (per curiam) (unpublished) (“While motivation is a


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question of fact, it does not preclude summary judgment unless there is a
genuine issue of material fact.” (citations omitted)).
      Finally, in the light of the above-described absence of a genuine issue of
material fact, we need not reach whether Appellants held “confidential” or
“policymaking” positions not entitled to First Amendment protection. See Aucoin
v. Haney, 306 F.3d 268, 272-73 (5th Cir. 2002) (citing Branti v. Finkel, 445 U.S.
507 (1980); Elrod v. Burns, 427 U.S. 347 (1976)).
                                       III.
      For the foregoing reasons, the judgment is AFFIRMED and this matter
is REMANDED to district court for further proceedings on any remaining
claims.




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