# Amalgamated Transit Union v. New Orleans Regional Transit Authority

> District Court, E.D. Louisiana · February 2, 2023

URL: https://www.frixlaw.com/law-library/cases/10188869

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** February 2, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10188869

## How later opinions describe it (automated extraction)

- stating that there is “no per se rule that profane employee speech fails [the Pickering] test”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

AMALGAMATED TRANSIT UNION ET AL. CIVIL ACTION

VERSUS No. 21-1790

NEW ORLEANS REGIONAL SECTION I
TRANSIT AUTHORITY ET AL.

ORDER & REASONS

Before the Court is a motion1 for summary judgment by defendants New
Orleans Regional Transit Authority (“RTA”) and Alex Wiggins (“Wiggins”). Plaintiffs
Amalgamated Transit Union (“ATU”) and Valerie Jefferson (“Jefferson”) oppose the
motion.2 For the reasons that follow, the Court grants the motion.
I. BACKGROUND
The Court exhaustively recounted the facts giving rise to this matter in its
order and reasons denying the parties’ cross-motions for summary judgment,3 and it
therefore does so only briefly here.
Jefferson was fired from her job as a bus driver for RTA on September 8, 2021.4
In addition to being a bus driver, Jefferson was the president of her local chapter of

1 R. Doc. No. 91.
2 R. Doc. No. 95.
3 R. Doc. No. 71.
4 R. Doc. No. 95-2, ¶¶ 1, 2, 4.
1
the ATU.5 Defendants assert that Jefferson was fired because, after asking about the
RTA’s termination of its deputy chief operations officer, Thomas Stringer (“Stringer”),
a non-union member, she said, “it’s on now, bitch” or “it is on bitch,” to Wiggins, RTA’s

CEO.6 The conversation between Jefferson and Wiggins was witnessed by only one
other person, RTA chief human resources officer Darwyn Anderson (“Anderson”).7
Plaintiffs argue that Jefferson initiated the conversation at issue due to her
concern that the firing of Stringer indicated that the RTA planned to renege on a
recently negotiated hazard pay deal,8 and that Jefferson did not use profanity.9
Plaintiffs assert that Jefferson said “it’s on now, I need to contact the [union]

executive board.”10 Jefferson asserts that, by firing her, defendants violated her First
Amendment rights to free speech and free association.11
As noted, the Court previously denied cross-motions for summary judgment,
determining that the parties’ differing accounts as to what Jefferson said during the
relevant conversation constituted a genuine dispute of material fact precluding
summary judgment as to both the speech and association claims.12 The Court also

5 Id. ¶ 3.
6 R. Doc. No. 91-2, ¶¶ 5, 10−13.
7 R. Doc. No. 95-2, ¶ 13.
8 Id. ¶¶ 10−12.
9 Id. ¶ 13.
10 Id.
11 See generally R. Doc. No. 1.
12 R. Doc. No. 71, at 16–17.
2
noted that defendants, in their motion and response to plaintiffs’ motion, had not
specifically addressed plaintiffs’ freedom of association claim.13
After continuing the trial date, the Court granted defendants leave to file a

motion for summary judgment addressing the issues of qualified immunity and
municipal liability, as well as plaintiffs’ substantive First Amendment claims.14 In
the motion currently before the Court, defendants argue that Wiggins is entitled to
qualified immunity, that Wiggins’ decision to fire Jefferson does not give rise to
municipal liability, and that both the speech and association claims fail on the merits,
regardless of the dispute over what Jefferson said.

II. STANDARD OF LAW
Summary judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any affidavits, a court determines that
there is no genuine dispute of material fact and the movant is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a). “[A] party seeking summary judgment always
bears the initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of [the record] which it believes demonstrate

the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The party seeking summary judgment need not produce evidence

13 Id. at 16.
14 R. Doc. No. 86. Defendants did not brief qualified immunity or municipal liability
in their initial summary judgment motion, but implicitly raised the issues in their
proposed jury instructions. R. Doc. No. 81, at 1 (“Could a reasonable officer have
believed that the termination of Valerie Jefferson was lawful? . . . “Did a policy or
custom of the RTA violate Valerie Jefferson’s constitutional right to free speech?”).
3
negating the existence of a material fact; it need only point out the absence of evidence
supporting the other party’s case. Id.; see also Fontenot v. Upjohn Co., 780 F.2d 1190,
1195–96 (5th Cir. 1986) (“There is no sound reason why conclusory allegations should

suffice to require a trial when there is no evidence to support them even if the movant
lacks contrary evidence.”).
Once the party seeking summary judgment carries that burden, the
nonmoving party must come forward with specific facts showing that there is a
genuine dispute of material fact for trial. See Matsushita Elec. Indus. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by

creating “‘some metaphysical doubt as to the material facts,’ by ‘conclusory
allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Rather, a
genuine issue of material fact exists when the “evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). If the nonmovant fails to meet their burden of showing a
genuine issue for trial that could support a judgment in favor of the nonmovant,

summary judgment must be granted. See Little, 37 F.3d at 1075–76.
“Although the substance or content of the evidence submitted to support or
dispute a fact on summary judgment must be admissible . . . the material may be
presented in a form that would not, in itself, be admissible at trial.” Lee v. Offshore
Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017) (citations omitted).

4
The party responding to the motion for summary judgment may not rest upon the
pleadings but must identify specific facts that establish a genuine issue. See
Anderson, 477 U.S. at 248. The nonmoving party’s evidence, however, “is to be

believed, and all justifiable inferences are to be drawn in [the nonmoving party’s]
favor.” Id. at 255.
III. ANALYSIS
As an initial matter, the Court notes that its previous order denying summary
judgment does not preclude granting the instant motion. “An order denying summary
judgment is interlocutory, and leaves the trial court free to ‘reconsider and reverse

its decision for any reason it deems sufficient, even in the absence of new evidence or
an intervening change in or clarification of the substantive law.’” Zarnow v. City of
Wichita Falls, Tex., 614 F.3d 161, 171 (5th Cir. 2010) (quoting Lavespere v. Niagara
Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990), abrogated on other
grounds by Little, 37 F.3d 1069).
a. Freedom of Speech
A government agency “cannot condition public employment on a basis that
infringes the employee’s constitutionally protected interest in freedom of expression.”

Garcetti v. Ceballos, 547 U.S. 410, 413 (2006) (quoting Connick v. Myers, 461 U.S.
138, 142 (1983)). “[T]he First Amendment nonetheless permits government
employers to exercise a degree of control over their employees’ words and actions.”
Hardesty v. Cochran, 621 F. App’x 771, 775 (5th Cir. 2015) (citations omitted).

5
To succeed on a First Amendment free speech retaliation claim pursuant to
§ 1983, the plaintiff must show that (1) she suffered an adverse employment action,
(2) she spoke as a citizen on a matter of public concern, (3) her interest in speaking

outweighs the government’s interest in the efficient provision of public services, and
(4) the protected speech motivated the adverse employment action. Wilson v. Tregre,
787 F.3d 322, 325 (5th Cir. 2015) (citing Nixon v. City of Houston, 511 F.3d 494, 497
(5th Cir. 2007)). The parties disagree as to whether plaintiffs can establish the second
and third elements.15
The second element requires the Court to make two separate determinations:

first, whether Jefferson was speaking as a private citizen; and second, whether she
spoke on a matter of public concern. Regarding the first prong of this element, the
Supreme Court has held that “when public employees make statements pursuant to
their official duties, the employees are not speaking as citizens for First Amendment
purposes, and the Constitution does not insulate their communications from
employer discipline.” Garcetti, 547 U.S. at 421. “Official duties” are tasks that
employees are “employed to do.” Id. The inquiry of whether an employee speaks

pursuant to their official duties “is a practical one.” Gibson v. Kilpatrick, 773 F.3d
661, 670 (5th Cir. 2014) (quoting Garcetti, 547 U.S. at 424). The fact that an employee
speaks inside their office, rather than publicly, or that the subject matter of speech

15 The first and fourth factors are not disputed. The parties agree that Jefferson
suffered an adverse employment action, as she was fired. They also agree that
Jefferson was fired because of her speech, though they dispute whether what she said
was entitled to First Amendment protection.
6
relates to their employment, does not necessarily mean that the speech was pursuant
to their official duties. Garcetti, 547 U.S. at 420−21. The “critical question . . . is
whether the speech at issue is itself ordinarily within the scope of an employee’s

duties, not whether it merely concerns those duties.” Lane v. Franks, 573 U.S. 228,
240 (2014).
When considering the second prong of this analysis—whether the employee’s
speech addresses a matter of public concern—the court “consider[s] the speech for
which the employee was disciplined . . . not some other speech.” Commc’ns Workers
of Am. v. Ector Cnty. Hosp. Dist., 467 F.3d 427, 437 (5th Cir. 2006) (en banc)

(emphasis in original) (citing Waters v. Churchill, 511 U.S. 661, 679 (1994)). Speech
relates to a matter of public concern “when it can be fairly considered as relating to
any matter of political, social, or other concern to the community, or when it is a
subject of legitimate news interest; that is, a subject of general interest and of value
and concern to the public.” Moody v. Walker, No. 20-2656, 2021 WL 3423597, at *11
(E.D. La. Aug. 5, 2021) (Vitter, J.) (quoting Lane, 573 U.S. at 241) (internal quotations
omitted).

In determining whether employee speech is on a matter of public concern,
courts consider the “content, form, and context” of the speech. Charles v. Grief, 522
F.3d 508, 514 (5th Cir. 2008) (quoting Connick, 461 U.S. at 147−48). The speaker’s
motive “may be considered,” but it is not “a determinative factor.” Davis v. Ector
Cnty., Tex., 40 F.3d 777, 782 (5th Cir. 1994). “The content of speech concerns a matter

7
of public concern ‘[i]f releasing the speech to the public would inform the populace of
more than the fact of an employee’s employment grievance . . . .’” Dumas v. St.
Tammany Parish Fire Dist. No. 3, 17-1025, 2017 WL 1969641, at *6 (E.D. La. May

12, 2017) (quoting Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir. 2001)).
“Whether the speech at issue is on a matter of public concern is a question of law that
must be determined by the court.” Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 184
(5th Cir. 2005) (citing Tompkins v. Vickers, 26 F.3d 603, 606 (5th Cir. 1994)).
The third element of a free-speech retaliation claim—the balancing of the
government’s and the employee’s interests— requires the Court to “balance the

individual and societal interests that are served when employees speak as citizens on
matters of public concern with the needs of government employers attempting to
perform their important public functions.” Collins v. Gusman, No. 14-234, 2015 WL
1468298, at *4 (E.D. La. Mar. 30, 2015) (Vance, J.) (quoting Garcetti, 547 U.S. at 420)
(internal quotations omitted). This balancing is sometimes referred to as “Pickering
balancing.” E.g., Salge, 411 F.3d at 184 (referring to Pickering v. Bd. of Educ., 391
U.S. 563 (1968)). Relevant considerations include:

(1) the degree to which the employee's activity involved a matter of public
concern; (2) the time, place, and manner of the employee’s activity; (3)
whether close working relationships are essential to fulfilling the
employee’s public responsibilities and the potential effect of the employee’s
activity on those relationships; (4) whether the employee’s activity may be
characterized as hostile, abusive, or insubordinate; (5) whether the activity
impairs discipline by superiors or harmony among coworkers.
8
Grogan v. Lange, 617 F. App’x 288, 292 (5th Cir. 2015) (per curiam) (unpublished)
(quoting Connick, 461 U.S. at 151–53). This balancing is also a question of law to be
determined by the court. Davis v. Allen Parish Serv. Dist., 210 F. App’x 404, 408 (5th

Cir. 2006) (citing Salge, 411 F.3d at 184).
“The Supreme Court has recognized that [when] applying this test, a dispute
sometimes arises as to ‘the factual basis for applying the test,’ that is, ‘what the
speech was, in what tone it was delivered, [and] what the listener’s reactions were.’”
Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 470 (5th Cir. 2014) (quoting
Waters v. Churchill, 511 U.S. 661, 668 (1994) (plurality opinion)). In such

circumstances, “the Waters Court instructed lower courts to take a deferential
approach: when an employer’s decision rests on a reasonable belief about the contents
of the speech, formed after an objectively reasonable investigation of the facts to
determine what the employee actually said, then the court should not second-guess
the employer’s decision, even if the employer was wrong and the speech was entitled
to protection.” Id. (citing Waters, 511 U.S. at 677–78).16
The Fifth Circuit has held that “[g]enerally, without at least asking an

employee what she said, an employer's indispensable investigation into whether an

16 Though Waters was a plurality opinion, a majority of the Supreme Court
reaffirmed its holding in Heffernan v. City of Paterson, which held that, when an
employer incorrectly believes that an employee engaged in activity protected by the
First Amendment, and terminates the employee on the basis of that factually
incorrect belief, “the employee is entitled to challenge that unlawful action under the
First Amendment.” 578 U.S. 266, 273 (2016) (“We conclude that, as in Waters, the
government's reason for demoting Heffernan is what counts here.”).
9
employee's speech was protected will not be reasonable.” Salge, 411 F.3d at 193. In
Waters, “the investigation approved by the Supreme Court comprised the employer
(1) thrice interviewing the employee who originally complained about [the

employee’s] speech, (2) questioning another employee who had witnessed the
conversation for corroboration, and (3) most significantly, conversing with the
employee whose speech was at issue.” Id. (citing Waters, 511 U.S. at 666). In Johnson
v. Louisiana, the Fifth Circuit found that an investigation was reasonable where the
employer “received statements from three employees, [ ] obtained a supervisor’s
report stating that the supervisor believed the plaintiff was lying, and [ ] the plaintiff

failed to present any evidence in his own support when explicitly invited to do so.” Id.
at 194 (citing Johnson v. Louisiana, 369 F.3d 826, 832 (5th Cir. 2004)) (emphasis
omitted). “In sum, [the Fifth Circuit] has made clear that reasonableness depends in
part on an investigation's thoroughness and typically results from some formal
process for reviewing evidence and weighing disputed claims.” Cutler, 767 F.3d at
474.
Defendants argue that, pursuant to Waters and Heffernan, the factual disputes

as to what Jefferson said in the conversation with Wiggins cannot provide a basis for
denying summary judgment.17 This is so, they argue, because the RTA conducted a
reasonable investigation of Jefferson’s speech before firing her. In support of this
argument, they point out that Wiggins, the relevant decisionmaker, had firsthand

17 R. Doc. No. 91-1, at 10. Defendants did not raise this argument in their initial
summary judgment motion. See generally R. Doc. No. 52.
10
knowledge of the interaction; that his account was corroborated by Anderson’s
account, as both reported hearing Jefferson say “bitch”; and that Jefferson initiated
a union grievance process regarding her termination.18 Defendants also argue there

is no evidence that Wiggins’ account of the facts is pretextual.19 Significantly,
plaintiffs do not dispute the applicability of Waters and Heffernan; indeed, they make
no response to the argument whatsoever.
Both Wiggins and Anderson reported that, in the interaction at issue, Jefferson
asked about Stringer’s termination, and then used the word “bitch.”20 By plaintiffs’
own account, Jefferson “was asked to give an account of her interaction with Mr.

Wiggins” during the meeting in which she was presented with a termination notice.21
Plaintiffs also do not dispute that Jefferson initiated a union grievance process
regarding her termination.22 Like the employers in Waters and Johnson, the RTA
relied on firsthand accounts of the interaction and provided Jefferson with an
opportunity to rebut those accounts. Waters, 511 U.S. at 666; Johnson, 369 F.3d at

18 R. Doc. No. 91-1, at 12–13.
19 Id. at 13.
20 R. Doc. No. 91-4, at 13:11–:16; R. Doc. No. 91-6, at 32:11–:12. Emails sent by
Wiggins and Anderson on the day of Jefferson’s termination also state that she used
the word “bitch.” R. Doc. Nos. 91-7, 91-8. Plaintiffs have contended that Jefferson also
referenced the executive board in this conversation. Neither Wiggins’ nor Anderson’s
accounts state that any such reference was made.
21 R. Doc. No. 55-4, at 96:14–:16 (Jefferson’s deposition testimony stating that
someone in the meeting “told [her] to tell [her] side of the story”).
22 R. Doc. No. 95-2, ¶ 18. Plaintiffs take issue with defendants’ statement that
Jefferson “went through” a union grievance process, but do not dispute that she
“initiated” one. Id.

11
832. Faced with disputed facts, the RTA made a decision to defer to the account of
Wiggins and Anderson over that of Jefferson. Gonzales v. Dallas Cnty., Tex., 249 F.3d
406, 412 (5th Cir. 2001) (“[W]e do not require government employers to make

personnel decisions through methods that mirror court procedures, nor do we
necessarily require employers always to resolve contradictory testimony in favor of
the employee.”). As previously stated, Jefferson also pursued, via the union grievance
process, a formal process for reviewing her termination.23 Cutler, 767 F.3d at 474.
Plaintiffs have not pointed to any evidence or explained how these undisputed
facts show that the RTA’s investigation was unreasonable within the meaning of

Waters, nor that Wiggins’ account was pretextual.24 Compare Jenkins v. Green, 70
F.3d 1266, 1995 WL 696683, at *8 (5th Cir. Oct. 17, 1995) (unpublished) (factual
issues as to the reasonableness of employer’s investigation precluded summary
judgment). Accordingly, the Court “take[s] a deferential approach” and does “not

23 Neither party’s briefing states what came of this grievance process.
24 The Court notes that the cases delineating what constitutes a reasonable
investigation, discussed above, are factually distinct from the instant matter because,
in those cases, the relevant decisionmaker was not a firsthand observer of the
relevant conduct. The reasonable investigation requirement therefore operated to
allow “government employers, like other employers, [to] rely on hearsay and personal
credibility determinations in deciding what was actually said.” Johnson, 369 F.3d at
832. However, the Court finds that these cases can still guide its analysis, as the
RTA’s decision in this matter was based on the accounts of Wiggins and Anderson
and its determination that those accounts were more credible than Jefferson’s.
12
second-guess the employer’s decision [as to what was said], even if the employer was
wrong and the speech was entitled to protection.” Cutler, 767 F.3d at 470.25
As stated, the Court must now determine whether Jefferson spoke as a citizen

on a matter of public concern. For purposes of this discussion, the Court will assume
that Jefferson spoke as a citizen. However, because the facts as understood by
Wiggins show that Jefferson did not speak on a matter of public concern, plaintiffs’
claims fail.
“Internal personnel disputes and management decisions are rarely a matter of
public concern.” Gibson v. Kilpatrick, 838 F.3d 476, 485 (5th Cir. 2016) (quoting

Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 827 (5th Cir. 2007)). Inquiring
about the termination of Stringer, a single non-union employee, is indicative of a
personal disagreement with management’s personnel decisions, and does not suggest
that the content of Jefferson’s speech touched on a matter of public concern. The only
indication that defendants had that Jefferson intended to discuss union-related
matters (and therefore was potentially implicating matters of public concern) was
that, when she interacted with Wiggins, it was typically in her capacity as a union

representative.26 Plaintiffs emphasize that Jefferson subjectively believed herself to
be acting as a union representative. Again, though, plaintiffs do not argue that

25 The Court notes that, using this standard, it need not decide whose account of the
interaction was correct as a factual matter. In other words, it need not decide whether
Jefferson actually used the word “bitch” or referenced the executive board.
26 E.g., R. Doc. No. 95, at 7.
13
defendants’ belief that Jefferson’s speech was unrelated to her union duties was based
on an unreasonable investigation.27
As noted, Wiggins and Anderson reported hearing Jefferson ask only about a

non-union employee, and then use the word “bitch.” It is undisputed that the
statement was made only to Wiggins and Anderson, not to the general public. See,
e.g., Modica v. Taylor, 465 F.3d 174, 181 (5th Cir. 2006) (“Though not dispositive,
Modica’s choice to inform someone outside [her employer] of her concerns supports
her contention that the speech is public.”); Kast v. Greater New Orleans Expressway
Comm’n, 719 F. Supp. 2d 662, 675 (E.D. La. 2010) (“[T]he Fifth Circuit has held that

speech made outside the work-setting to reporters or elected officials is of public
concern.”). Accordingly, as defendants understood it, Jefferson’s speech only weakly
implicated any matter of public concern, if at all.
The Fifth Circuit has recognized that the Pickering balancing test “is a sliding
scale or spectrum upon which ‘public concern’ is weighed against disruption.” Garza
v. Escobar, 972 F.3d 721, 729 (5th Cir. 2020) (citation omitted). “The more central a
matter of public concern the speech at issue, the stronger the employer's showing of

27 Moreover, as the Court noted in its prior order, where speech is unrelated to a
matter of public concern, courts decline to “impute to such speech a public character
merely because the employee is also a union officer.” Shara v. Me.-Endwell Cent. Sch.
Dist., 46 F.4th 77, 88 (2d Cir. 2022).
14
counter-balancing governmental interest must be.” Jordan v. Ector Cnty., 516 F.3d
290, 299 (5th Cir. 2008) (quotation and citation omitted).
Because Jefferson’s speech, even by her own account, at most touched only

lightly on a matter of public concern, the government’s efficiency interest need not be
great in order to prevail. And defendants’ side of the Pickering scale is not weighty.
Wiggins stated in his deposition that Jefferson’s statement “affected the order of
management,” but did not otherwise impair RTA’s operations28 Defendants have not
indicated that her statement caused any other disruptions. Balancing these two weak
interests, the Court concludes that defendants’ interests prevail.

Relevant considerations in Pickering balancing are the time, place and manner
of the employee’s activity, whether the employee’s activity can be characterized as
hostile or insubordinate, and whether the statement impairs discipline by superiors.
Grogan, 617 F. App’x at 292. As defendants understood it, Jefferson used profanity
against a member of RTA management, which is fairly characterized as a hostile
statement with the potential to impair discipline. As to the time and place of
Jefferson’s conduct, it is undisputed that the interaction took place on RTA property,

in the executive offices.29
The Court does not intend to suggest that the use of profanity, alone, dictates
resolution of the Pickering test in the employer’s favor. See Morris v. Crow, 117 F.3d

28 R. Doc. No. 95-4, at 26:16–:21.
29 The parties dispute whether Jefferson was “on duty,” because she was on a
scheduled break at the relevant time.
15
449, 458 n.4 (11th Cir. 1997) (stating that there is “no per se rule that profane
employee speech fails [the Pickering] test”). However, on the facts as reasonably
understood by the defendants, the Court concludes that Jefferson’s interest in

speaking does not outweigh the defendants’ interests in maintaining a respectful
work environment and discipline by superiors. Accordingly, the Court finds that the
Pickering balancing test weighs in favor of defendants, and defendants are entitled
to summary judgment on plaintiffs’ speech claims.
b. Freedom of Association

“The [First Amendment] right of association encompasses the right of public
employees to join unions and the right of their unions to engage in advocacy and to
petition government [o]n their behalf.” Mote v. Walthall, 902 F.3d 500, 507 (5th Cir.
2018) (quoting Hitt v. Connell, 301 F.3d 240, 249 (5th Cir. 2002) (further citations
omitted)). Government employers therefore may not take “action whose purpose is

either to intimidate public employees from joining a union or from taking an active
part in its affairs or to retaliate against those who do.” Id.
“The First Amendment protects two broad categories of association.” Caleb v.
Grier, 598 F. App’x 227, 237 (5th Cir. 2015) (citation omitted). “The first protects
“choices to enter into and maintain certain intimate human relationships” including
“marriage, the begetting and bearing of children, child rearing and education, and
cohabitation with relatives.” Id. (citation omitted). “The second category is association

for the purposes of engaging in other activities protected by the First Amendment,
16
such as speech or the free exercise of religion.” Id. (citation omitted). The associational
rights at issue in the instant matter fall into the second category. See Mote, 902 F.3d
at 507–08.

To succeed on a claim of First Amendment retaliation for freedom of
association, a plaintiff must show that (1) she suffered an adverse employment action
(2) her interest in associating outweighed the employer’s interest in efficiency, and
(3) her protected activity was a substantial or motivating factor in the adverse
employment action. Hitt, 301 F.3d at 246 (citing Breaux v. City of Garland, 205 F.3d
150, 156, 157 n. 12 (5th Cir. 2000); Boddie v. City of Columbus, 989 F.2d 745, 747 (5th

Cir. 1993)). Per Fifth Circuit case law, there is no “matter of public concern” element
in a right-to-associate retaliation claim. Coughlin v. Lee, 946 F.2d 1152, 1158 (5th
Cir. 1991); accord Burnside v. Kaelin, 773 F. 3d 624, 626 (5th Cir. 2014).30
“When a plaintiff’s claims arise under both freedom of speech and freedom of
association . . . the freedom of association claims are analyzed under the same
Pickering balancing test used to determine the success of the freedom of speech
claims.” Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 444 (5th Cir. 1999). A

court considering a freedom of association retaliation claim therefore considers

30 The Court notes that some courts have expressed doubt over how to apply these
standards in cases with “entangled union speech and associational freedoms.” United
Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Ind. & Serv.
Workers Int’l Union v. Anderson, 17-1242, 2018 WL 3017366, at *11 (W.D. Tex. June
15, 2018), but that courts in the Fifth Circuit have analyzed speech and association
claims separately, applying the public concern requirement to the speech claim but
not the association claim. Id. at *14 (collecting cases).
17
whether the employee’s right to free association outweighs the employer’s need “to
perform their important public functions.” Collins, 2015 WL 1468298, at *4.
The Court has already determined, with regard to the speech claim, that the
Pickering test weighs in the defendants’ favor. For the same reason, plaintiffs’
association claims fail.?! Anderson, 184 F.3d at 444. Accordingly,
IT IS ORDERED that the defendants’ motion®? for summary judgment is
GRANTED and plaintiffs’ claims are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, February 2, 20238.

LANCE M. wher
UNITED STATES BISTRICT JUDGE

31 Because the Court determines that plaintiffs’ First Amendment claims fail on the
merits, it does not consider the parties’ arguments regarding qualified immunity
and municipal liability.
82 R. Doc. No. 91.
18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10188869. Public record. Not legal advice.