F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 28 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
RANDALL E. LUNOW; TERRY G.
WEAVER; RICKY G. HENSON;
MELVIN Y. HANSON, JR.,
Plaintiffs - Appellants,
No. 02-6066
v. (D.C. No. CIV-01-185-C)
(W.D. Oklahoma)
CITY OF OKLAHOMA CITY, a
municipality; GARY MARRS,
individually and in his official
capacity,
Defendants - Appellees,
and
INTERNATIONAL ASSOCIATION
OF FIRE FIGHTERS, AFL-CIO,
Amicus Curiae.
ORDER AND JUDGMENT *
Before BRISCOE , BALDOCK , and HARTZ , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiffs Randall Lunow, Melvin Hanson, Ricky Henson, and Terry
Weaver are current and former firefighters with Defendant City of Oklahoma City
(City) and activists in the firefighters’ union. They brought this action under 42
U.S.C. § 1983, alleging that the City and its fire chief, Defendant Gary Marrs,
retaliated against them because of their speech and union activity, in violation of
their First Amendment rights to free speech and free association (as incorporated
into the Fourteenth Amendment, see DeJonge v. Oregon, 299 U.S. 353 (1937)).
The district court granted summary judgment in favor of Defendants, and
Plaintiffs appeal. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
I. BACKGROUND
Much is undisputed. Plaintiffs all began their service with the Oklahoma
City Fire Department (Department) in the late 1970s. Plaintiffs Lunow, Henson,
and Weaver are currently employed by the Department and hold the rank of major.
Plaintiff Hanson retired from the Department as a major in April 2000.
Defendant Marrs served as fire chief of the Department from 1993 until his
retirement in January 2002.
Of the 946 City firefighters, 932 are dues-paying members of the
International Association of Firefighters, Local 157. Major Lunow’s union
activism began in the mid-1980s. He served as a steward for ten years, and as a
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trustee and member of the union’s executive board from 1995 to 1999. Major
Henson has been active in the union since 1983, serving as its public relations
director from 1983 to 1986. Major Weaver’s union activity began in 1984, and
includes service as a district vice president from 1984 to 1986, and as chairman of
the union’s public relations committee. Major Hanson became active in the union
in 1989, serving as a trustee from 1990 to 1994, and as a district vice president.
From 1991 to 1994, he was a member of the team negotiating the Collective
Bargaining Agreement (CBA) with the City. In addition, from 1990 to 1996 he
wrote for two local union publications, the Bugle and the Dispatch, in which he
was often critical of Chief Marrs and others in the Department’s administration.
All four Plaintiffs also served as union representatives on the Department’s
Safety and Health Committee. In addition to their other union activities,
Plaintiffs have worked on various political campaigns endorsed by the union.
Plaintiffs contend that they have been subjected to involuntary transfers to
less desirable fire stations as a result of their union-related speech and activity.
Their main complaint, however, is that they have been denied promotions to the
position of district chief because they are union activists. Since 1994, Majors
Lunow, Henson, and Weaver have each unsuccessfully attempted to become one
of the 18 district chiefs in the Department’s suppression division. In 1994 and
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1997, Major Hanson sought but failed to attain promotion to the position of
district chief in the Department’s support division.
Unhappy with their failure to advance further in the Department, Plaintiffs
filed this § 1983 lawsuit in January 2001. Defendants jointly moved for summary
judgment. The district court granted the motion, holding that Plaintiffs’ speech
and association claims were identical, and that neither was a matter of public
concern. This appeal followed.
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment de novo. Wilson
v. Meeks, 98 F.3d 1247, 1252 (10th Cir. 1996). Summary judgment is appropriate
“if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). In considering a summary judgment motion, we view the
evidence in the light most favorable to the non-moving party. Wilson, 98 F.3d at
1253. The non-moving party, however, may not “rest on ignorance of facts, on
speculation, or on suspicion and may not escape summary judgment in the mere
hope that something will turn up at trial.” Conaway v. Smith, 853 F.2d 789, 794
(10th Cir. 1988). Instead, the non-moving party must set forth “specific facts”
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showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986).
III. FREE SPEECH CLAIMS
Plaintiffs allege that Defendants retaliated against them for exercising their
First Amendment right to free speech. “Because this is an employment retaliation
case asserting a First Amendment right, our analysis of whether [Plaintiffs have]
sufficiently alleged that Defendants violated [their] constitutional rights involves
four steps.” Butler v. City of Prairie Vill., 172 F.3d 736, 745 (10th Cir. 1999)
(internal quotation marks omitted). The first is to determine whether each
plaintiff’s speech involved a matter of public concern. Id. at 745-46. The second
is to “balance the interests of the employee in making the statement against the
public employer’s interests in the effective and efficient fulfillment of its
responsibilities to the public.” Id. at 746 (internal quotation marks omitted).
Third, “if the balance tips in favor of the plaintiff, then he must show that the
protected speech was a motivating factor in the decision.” Id. (internal quotation
marks omitted). Finally, if the plaintiff makes this showing, “the burden then
shifts to the employer to show by a preponderance of the evidence that it would
have reached the same decision in the absence of the protected activity.” Id.
(internal quotation marks omitted).
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In their district court brief responding to the motion for summary judgment,
Plaintiffs generally described their union activities and argued that those activities
were a matter of public concern. Aplts’ App. at 416. But they failed to point to
any particular instance of speech and argue that it was a matter of public concern.
As a result, the district court found itself “challenged to engage in the public
concern analysis because Plaintiffs have not identified any verbal or written
speech upon which it can make a determination.” Aplts’ App. at 603. (Dist. Ct.
Order dated Jan. 31, 2002, at 11). Going beyond the call of duty, the court
examined the record, including Plaintiffs’ depositions and certain articles written
by Major Hanson that were submitted as part of Defendants’ motion for summary
judgment, and concluded that any speech upon which Plaintiffs might rely was not
a matter of public concern. It therefore dismissed their speech claims.
In their brief on appeal, Plaintiffs identify the following instances of speech
that allegedly led to retaliation: (1) their “speech while representing union
interests on the Safety and Health Committee,” Aplts’ Opening Br. at 14; (2) their
“work on political and election campaigns,” id.; (3) Major Lunow’s “speech
regarding Marrs’ anti-union animus” and his participation in two lawsuits filed
against the City, id. at 12, 13; and (4) Major Hanson’s articles in union
publications critical of Defendants. We consider each in turn.
A. Safety and Health Committee
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All four Plaintiffs allege that their “speech” as union representatives on the
Safety and Health Committee related to a matter of public concern, because this
committee “addresses issues dealing with the safety of firefighters while
performing their job.” Aplts’ Opening Br. at 7. None of the Plaintiffs, however,
point to any particular statement that he made as a member of the committee. The
only evidence in the record relating to the work of the Safety Committee comes
from Major Weaver, who served on the committee for six years between 1984 and
1998. He testified that Safety Committee discussions with management often
became “heated,” Aplts’ App. at 476, particularly with regard to the “water
quality issue at Station 28,” and issues relating to “bunker equipment or
protective clothing” and the use of “hand lines.” Id. at 477. But the record does
not indicate the content of these discussions, when they were held, or which of
the Plaintiffs, if any, spoke out on these issues.
Even assuming that the subject matter of the committee’s work touched on
a matter of public concern, Plaintiffs’ evidence is insufficient to demonstrate
protected speech under the First Amendment. “In order for a public employee’s
speech to be of public concern, . . . it is not always enough that its subject matter
could in [certain] circumstances, [be] the topic of a communication to the public
that might be of general interest. What is actually said on the topic must itself be
of public concern.” Koch v. City of Hutchinson, 847 F.2d 1436, 1445 (10th Cir.
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1988) (en banc) (internal quotation marks omitted; brackets in the original;
second emphasis added). Here, no Plaintiff has presented evidence of anything
that he actually said while on the Safety Committee. Thus, Plaintiffs cannot rely
on their participation on the Safety Committee to support their free speech claims.
B. Political campaigns
Next, all four Plaintiffs contend that their work on union-supported
political campaigns was a matter of public concern. Again, Plaintiffs decline to
offer specifics or direct us to any in the record. But even assuming that their
purported political speech was a matter of public concern, it cannot form the basis
of their speech claims, because Plaintiffs have pointed to nothing in the record
indicating that their political activity was a “motivating factor” behind any
alleged adverse action. Butler, 172 F.3d at 746 (a plaintiff must show that his
“protected speech was a motivating factor” behind the challenged decision).
Indeed, the record refutes any such notion. Each Plaintiff testified that no one
from the Department ever told him that he could not participate in political
campaigns, or told him that he must support or oppose a particular candidate or
position. Major Weaver admitted that he was unaware of any adverse job action
taken in response to his participation in union-endorsed campaigns. All Major
Lunow could offer is that he “just know[s]” that he has suffered retaliation for his
political activity, but he could not explain how. Aplts’ App. at 506. This is
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plainly insufficient to overcome Defendants’ motion for summary judgment.
Once “a properly supported motion for summary judgment is made, the adverse
party must set forth specific facts showing that there is a genuine issue for trial.”
Liberty Lobby, 477 U.S. at 250 (internal quotation marks omitted; emphasis
added).
C. Major Lunow’s speech
Major Lunow offers as examples of protected speech (1) his criticism of
Chief Marrs’ anti-union animus and refusal to promote union leaders, and (2) his
service “on behalf of the union as a named plaintiff in a lawsuit against the City
regarding issues of overtime pay and misappropriation of sales tax.” Aplts’
Opening Br. at 13. We can readily dispose of the first claim. The assertion that
Major Lunow spoke out about Chief Marrs’ purported union animus is entirely
unsupported by reference in Plaintiffs’ briefs on appeal to anything in the record,
and we thus decline to consider it. See SEC v. Thomas, 965 F.2d 825, 827 (10th
Cir. 1992) (the court will not sift through the record in search of support for a
party’s contention of error).
Although Plaintiffs do not further describe Major Lunow’s lawsuit against
the City or provide supporting documentation, they do at least cite to the portion
of his deposition where it is discussed. The record indicates that Major Lunow
was actually a plaintiff in two separate lawsuits: (1) a 1986 lawsuit against the
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City to collect Fair Labor Standards Act (FLSA) overtime pay awarded to
firefighters in an arbitration, and (2) a 1992 lawsuit, which he admits was a
“friendly” suit to settle a dispute between the City and the union concerning the
spending of a dedicated sales tax. Neither lawsuit supports his free speech claim.
With respect to the 1986 lawsuit (which predated Chief Marrs’ tenure by
seven years), we question whether an FLSA lawsuit is a matter of public concern.
See Tiltti v. Weise, 155 F.3d 596, 602 (2d Cir. 1998) (lawsuit brought by plaintiff
on behalf of other employees regarding pay under the FLSA is matter of “personal
interest” and not “public concern”). But even assuming that it is, Plaintiffs direct
us to nothing in the record (other than Major Lunow’s own unsupported
speculation) indicating hostility to the suit, or the plaintiffs in the suit, from
Department leaders. Nor do they point to an adverse action against Major Lunow
that can be reasonably tied to his participation in the litigation. As for the 1992
lawsuit, Plaintiffs do not explain why Major Lunow would suffer retaliation for
participation in what he acknowledges was a “friendly” lawsuit. Accordingly, his
speech claim fails.
D. Major Hanson’s articles
Major Hanson identifies two instances of speech which he contends are
matters of public concern: (1) an article (or articles) that he wrote in the
Dispatch regarding Chief Marrs’ alleged anti-union animus, in which he claims to
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have “spoke[n] out against Marrs and other supervisory personnel of the Fire
Department regarding the illegal conduct of refusing to promote firefighters
because of their union activity,” Aplts’ Opening Br. at 12; and (2) articles that he
wrote in the Bugle and the Dispatch criticizing Chief Marrs and the City “for
administrative decisions regarding budget cuts, reorganizations, and negotiations
over the Collective Bargaining Agreement.” Id. at 13. In his deposition Major
Hanson testified that he suffered two adverse actions as a result of the writings:
(1) a one-shift transfer from Station 8 to Station 22 in 1993, and (2) the denial of
a promotion to Chief Training Officer at some unspecified time in 1994.
The record contains a copy of the Dispatch (dated September 1994)
discussing contentious CBA negotiations, and a copy of the Bugle (dated March
1996) discussing proposed budget cuts and a contemplated reorganization of the
Department. The record does not, however, contain a copy of the Dispatch issue
in which he allegedly criticized Chief Marrs for refusing to promote union
leaders. Nor is there any evidence in the record regarding the date of the issue.
To establish causation in a freedom-of-speech case, a plaintiff must—at a
minimum—present evidence that his protected speech preceded the adverse
actions alleged. Plaintiffs have failed to meet that minimal burden. First, it is
clear that the 1996 Bugle article could not have motivated either of the adverse
actions cited by Major Hanson, since the article was written after both the 1993
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transfer and the 1994 non-promotion occurred. Similarly, because Plaintiffs have
failed to come forward with evidence regarding the date of the Dispatch article in
which Major Hanson purportedly criticized Chief Marrs for refusing to promote
union leaders, we cannot determine whether that article predated either of the
adverse actions alleged. Finally, while it is possible that the September 1994
Dispatch article preceded Major Hanson’s 1994 non-promotion, Plaintiffs do not
specify in which month that non-promotion occurred, and we are left to speculate
whether the article preceded his failure to be promoted. This is insufficient
evidence to overcome a motion for summary judgment.
In summary, the district court properly granted summary judgment on
Plaintiffs’ free speech claims.
IV. ASSOCIATION CLAIMS
Plaintiffs contend that in retaliation for their union activity, Defendants
involuntarily transferred them to less desirable fire stations and denied them
promotions to the rank of district chief. They contend that this retaliation
violated their First Amendment right to associate freely with their union. The
district court granted summary judgment to Defendants, ruling that Plaintiffs’ free
association claim was identical to their free speech claim and that their alleged
association was not a matter of public concern.
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The parties devote much of their attention on appeal to arguing whether the
Pickering/Connick “public concern” test developed in the free speech context, see
Pickering v. Bd. of Educ., 391 U.S. 563 (1968); Connick v. Myers, 461 U.S. 138
(1983), applies to public employee freedom-of-association claims. As the district
court noted, courts are split as to whether the “public concern” analysis governs
freedom-of-association claims, compare, e.g., Griffin v. Thomas, 929 F.2d 1210,
1214 (7th Cir. 1991) (public concern test applies to association claims); Boals v.
Gray, 775 F.2d 686, 692 (6th Cir. 1985) (same), with Boddie v. City of Columbus,
989 F.2d 745, 747 (5th Cir. 1993) (public concern test inapplicable to association
claims); Hatcher v. Bd. of Pub. Educ. & Orphanage, 809 F.2d 1546, 1558 (11th
Cir. 1987) (same); and this circuit has not squarely decided the issue, see Schalk
v. Gallemore, 906 F.2d 491, 498 n.6 (10th Cir. 1990) (applying public concern
test to identical free speech/association claims in context of case before it, but
noting that the public concern test “may be an inapt tool of analysis” in other
public employee/free association contexts).
We need not decide this interesting issue here, however. Even assuming
that Plaintiffs’ union activity was a matter of public concern, to prevail under
their free association claim, Plaintiffs must establish causation—that is, that their
union activity was a “motivating factor” behind the adverse employment actions
that they allege. Saye v. St. Vrain Valley Sch. Dist., 785 F.2d 862, 867 (10th Cir.
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1986). Although the district court based its decision on public concern grounds
and did not reach the causation issue, we may affirm the judgment below “on any
grounds for which there is a record sufficient to permit conclusions of law, even
grounds not relied upon by the district court.” Smith v. Plati, 258 F.3d 1167,
1174 (10th Cir. 2001). Contrary to Plaintiffs’ belief, see Reply Br. at 8,
Defendants can raise an alternative ground for affirmance in their answer brief,
without the need for filing a cross-appeal. See Tinkler v. United States ex rel.
FAA, 982 F.2d 1456, 1461 n.4 (10th Cir. 1992). As we now proceed to explain,
summary judgment was proper because Plaintiffs have failed to present sufficient
evidence to create a genuine issue of fact regarding whether their union activity
was a motivating factor behind their transfers and their failures to be promoted.
We begin our review of the causation issue by discussing purported
evidence of anti-union animus not directly involving action against any of the
Plaintiffs: (1) general allegations of animus set forth in affidavits of five union
activists who are not plaintiffs in this lawsuit; (2) a further allegation in one of
the affidavits that the activist was himself transferred in retaliation for his union
activity; and (3) alleged comments attributed to Chief Marrs. We conclude that
none of this has probative value, except that one comment provides some,
although minimal, evidence of animus. We then examine the various alleged
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adverse actions to determine whether there is sufficient additional evidence to
support a finding of causation. Our conclusion is that such evidence is absent.
A. Non-specific “evidence” of anti-union animus
The affidavits from the five activists assert, in effect, that union activity is
a detriment to firefighters’ careers in the Department. But these assertions are
entitled to no weight on summary judgment, because they are conclusory, without
providing any factual basis for the conclusions. “To survive summary judgment,
nonmovant’s affidavits must be based upon personal knowledge and set forth
facts that would be admissible in evidence; conclusory and self-serving affidavits
are not sufficient.” Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir.
1995) (internal quotation marks omitted); see also Tavery v. United States, 32
F.3d 1423, 1427 n.4 (10th Cir. 1994) (“Under Fed. R. Civ. P. 56(e), only
statements made on personal knowledge will support a motion for summary
judgment; statements of mere belief must be disregarded.” (internal quotation
marks omitted)).
The affidavit of the transferred activist—Brad Dunlap—is likewise too
short on facts to be probative. Mr. Dunlap stated that in 1998 he was
involuntarily transferred to a different fire station shortly after he complained
about his district chief’s refusal to allow him to attend a union meeting. There is
no further evidence in the record about this incident, such as whether he had a
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right to leave work to attend the meeting or whether the transfer was out of the
ordinary or to a less attractive position. Nor is there any evidence of involvement
by Chief Marrs. Mr. Dunlap’s affidavit is thus not probative of anti-union
animus.
As for the comments that Plaintiffs point to as proof of Chief Marrs’ anti-
union bias, they were allegedly made in the course of three separate incidents
involving Major Lunow, Major Hanson, and another union activist, Steve Lumry.
First, in 1995 Major Lunow reported to Department management and union
officials that a district chief was improperly giving certain firefighters test
materials to prepare for the district chief selection process. Major Lunow
testified that an Assistant Chief relayed a message from Chief Marrs that Lunow’s
reporting such conduct was a “career decision.” There is no indication, however,
that Chief Marrs’ reference to a “career decision” was related to Major Lunow’s
role as a union leader, and Plaintiffs do not explain how it was.
Next, Plaintiffs make a passing reference in their reply brief to an incident
involving Major Hanson, who, while suffering from post-traumatic stress
disorder, requested a transfer to dispatch. According to Plaintiffs, one of Chief
Marrs’ assistants denied the request and sent Major Hanson a message that he did
not want dispatch filled with “head cases and cripples.” Aplts’ Reply Br. at 11.
Major Hanson assumed that the message came from Chief Marrs. Yet this
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comment, while repugnant, appears to be a reference to Major Hanson’s medical
condition, not his union activity. Plaintiffs do not explain how the comment
demonstrates anti-union animus.
The third incident is more substantial. An affidavit of Steve Lumry, a
union activist in the Department, states that in 1996 or 1997 Chief Marrs made
comments to him at a meeting “to the effect that some of [Mr. Lumry’s] activities
associated with the union may be the reason that [he] hadn’t been promoted yet.”
Aplts’ App. at 550. Major Lunow, who was present during this conversation,
testified that Chief Marrs asked Mr. Lumry, “[D]o you think would you be an
officer today if you hadn’t been a union officer?” Id. at 524. This statement
could reasonably be construed as an indication that Chief Marrs did not favor the
promotion of, or was otherwise hostile towards, union leaders. But this isolated
comment (or question) to a non-plaintiff during the course of his nine years as
chief is not sufficient in itself to sustain a claim that anti-union animus motivated
any particular action taken by Chief Marrs against any of the Plaintiffs. In a
similar context we wrote:
[A stray remark] is insufficient to create a jury issue in an
employment discrimination case. Age-related comments referring
directly to the plaintiff can support an inference of age
discrimination, but isolated or ambiguous comments may be, as here,
too abstract to support such an inference. . . . A plaintiff must
demonstrate a nexus exists between the allegedly discriminatory
statement and the company’s termination decision . . . .
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Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10th Cir. 2000) (internal
quotation marks, brackets, and citations omitted); see Cone v. Longmont United
Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir. 1994) (“Isolated comments, unrelated to
the challenged action, are insufficient to show discriminatory animus in
termination decisions.”).
Because this evidence has so little probative value, we now proceed to
determine whether evidence specific to the alleged adverse actions against
Plaintiffs can fill the gaps in their proof of causation.
B. Causation evidence specific to alleged adverse actions
Plaintiffs claim to have suffered adverse employment actions when (1) each
Plaintiff was involuntarily transferred to a less desirable fire station; (2) Majors
Lunow, Henson, and Weaver were denied promotion to district chief in the
Department’s suppression division; and (3) Major Hanson was not promoted to
district chief in the Department’s support division. We discuss in turn the
evidence of causation with respect to each of these alleged adverse actions.
1. Involuntary transfers
Each plaintiff alleges that he was retaliated against by being subjected to
involuntary “transfers to less desirable fire stations.” Aplts’ Opening Br. at 8.
The allegations, however, are unsupported by competent evidence.
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First, Major Weaver’s contention that he has been involuntarily transferred
is entirely unsupported by the record, so his claim must fail. See Thomas, 965
F.2d at 827.
As for Major Henson, he testified that in late 1994 or early 1995, he was
given an involuntary “special assignment to training,” and that this transfer was
retaliatory. Aplts’ App. at 532, 533. But Plaintiffs point to nothing in the record
linking this transfer to Major Henson’s role as a union leader. On the contrary,
Major Henson testified that Deputy Chief Mike Webb ordered the transfer
because Henson complained to his district chief that Webb was unfairly
promoting his “close associates” over Henson. Id. at 533. Accordingly, the claim
fails.
Major Lunow’s allegations of retaliatory transfers are similarly flawed. He
testified in general terms about a number of transfers to various stations between
1985 and 1995. According to Major Lunow, some of these transfers he requested,
some he did not, some were agreeable, and some were not, because they were to
stations “out of the mainstream” that did not have the best trucks or equipment.
Id. at 503, 504. Again, however, Plaintiffs point to nothing in the record
indicating that the transfers were retaliation for Major Lunow’s union activity,
apart from Lunow’s own conclusory testimony that it is “commonly known” that
union officials get sent to stations “out of the mainstream.” Aplts’ App. at 502.
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There is insufficient evidence of causation to withstand summary judgment on
this claim.
Finally, Major Hanson contends that a 1993 involuntary transfer for one
shift, from Station 8 to Station 22, was retaliation for his work on the Dispatch.
We question whether a one-shift transfer constitutes an adverse action,
particularly where, as here, there is no evidence in the record regarding why the
transfer was undesirable. See Lybrook v. Members of Farmington Mun. Sch. Bd.
of Educ., 232 F.3d 1334, 1340 (10th Cir. 2000) (“there may be some minor
adverse actions that would not constitute First Amendment violations” (internal
quotation marks omitted)). In any event, there is no evidence of causation. All
Major Hanson offered in support of this claim was speculation that the transfer
was retaliation for his work on the Dispatch because of its “timing,” since “[j]ust
out of the blue, [the transfer] came down.” Aplts’ App. at 444. He testified that
“maybe that [one-shift transfer] was the parting shot. I don’t know.” Id. Such
“evidence” cannot support a finding of causation.
Because Plaintiffs have failed to provide evidence that their union activity
was the motivation for the allegedly retaliatory transfers, we affirm the district
court’s grant of summary judgment on these claims.
2. Non-promotion to district chief in suppression division
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We now address the claims by Majors Lunow, Henson, and Weaver that
they were denied promotion to the position of district chief in the Department’s
suppression division because of their union activity. The Collective Bargaining
Agreement (CBA) between the union and the City sets forth the requirements for
promotion to that position. Before examining those requirements, however, we
consider Plaintiffs’ contention that there is also a de facto requirement that a
firefighter must first serve as a “rideout” to a district chief in order to be
promoted to district chief in suppression.
a. The rideout “requirement”
A rideout is an assistant to a district chief and is in charge of the fire
district when the district chief is unavailable. Plaintiffs allege that because of
their union activity, they have been denied the opportunity to become rideouts,
which in turn has resulted in their exclusion from the promotion process for the
position of district chief in the suppression division, regardless of anything
contained in the CBA. (Plaintiffs do not allege that service as a rideout is a
prerequisite to promotion to district chief in the Department’s support division.
Because Major Hanson sought promotion only within the support division, he
does not base his claim on his failure to be appointed a rideout.) Plaintiffs assert
that certain rideouts are groomed for the position of district chief, and improperly
receive special training and testing materials not provided to other firefighters.
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They contend, and Defendants apparently do not dispute, that every firefighter
who has been promoted to the position of district chief in suppression during
Chief Marrs’ tenure has served as a rideout at one time in his career.
What Plaintiffs have failed to do, however, is present any evidence that
their union activity played a role in their failure to be selected as rideouts. To
begin with, Plaintiffs have failed to present competent evidence that Chief Marrs
played a role in their non-selection. Under the CBA the Department’s district
chiefs have the right to select their own rideouts. As evidence that Chief Marrs
actually selects which firefighters will be rideouts, Plaintiffs point only to the
previously mentioned affidavits of other union activists in the Department. Each
affidavit states, with minor variations, that “to the best of [the affiant’s]
recollection and belief. . . [he has] observed circumstances establishing that”
Chief Marrs gives “instructions or input or approval” to district chiefs regarding
whom to select as rideouts. Aplts’ App. 547; see also App. 544; 545; 549; 551.
Such conclusory statements, unsupported by facts, must be disregarded on
summary judgment. Murray, 45 F.3d at 1422; Tavery, 32 F.3d at 1427 n.4.
Nor is there any other evidence connecting Plaintiffs’ union activity to their
failure to be appointed rideout. Plaintiffs’ testimony on the matter is limited to
unsupported conclusions. Major Henson noted an occasion on which a district
chief reneged on a promise to select him as a rideout, and then speculated, “I
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figure[d] it’s just like a lot of the other things, you know. The guy is a union guy,
just overrule him.” Aplts’ App. at 536-37. Major Weaver testified that he had
expressed an interest to various district chiefs about becoming a rideout, but was
never selected or given a reason why. He concluded that he was not selected
because of his union activity. Likewise, Major Lunow offered his own
unsupported conclusion that he was not chosen because he was active in the
union.
Because they did not offer competent evidence that their union activity was
a motivating factor behind their failure to be selected as rideouts, Majors Lunow,
Henson, and Weaver cannot rely on that non-selection as a basis for their
freedom-of-association claims.
b. Promotion under the CBA
Having removed the rideout element from the equation, we now turn to the
requirements under the CBA for promotion to the position of district chief in
suppression. Under the CBA, to be eligible for the promotion, a firefighter must
hold the rank of major, have 15 years’ experience in the Department, and (1) take
a 100-question written examination; (2) score in the top 12 on the written
examination, which qualifies the applicant to advance to the assessment center for
evaluation by a panel of interviewers; and (3) perform well enough at the
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assessment center to be among the small number of candidates who proceed to the
final stage of the competition, an interview with the fire chief.
With this background, we can readily dispose of the claims by Majors
Henson and Weaver that their failure to be promoted was retaliation for their
union activity. Major Henson took the written test on two occasions but never
scored high enough to advance to the assessment center. Major Weaver advanced
to the assessment center once on four attempts, but did not perform well enough
to advance to the interview stage. Thus, neither Major Henson nor Major Weaver
was eligible to be promoted to district chief in suppression. We note that they
make no allegation that they were given improperly low scores on the written
examination or at the assessment center in retaliation for their union activity.
Accordingly, their union activity could not have been a motivating factor in Chief
Marrs’ failure to promote them, and the district court properly granted summary
judgment on their freedom-of-association claims.
Major Lunow presents a slightly different situation. On four occasions he
failed to progress beyond the assessment-center stage. Like Majors Henson and
Weaver, he makes no allegation that the scoring of the preliminary examinations
was retaliatory. Thus, Major Lunow’s failure to be promoted on these four
occasions was the result of his ineligibility for the position under the CBA, not
his union activity.
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Unlike Majors Henson and Weaver, however, Major Lunow did advance to
the final stage on one occasion—in 1998, when he competed for the position of
Special Teams Coordinator, a district chief position in the suppression division.
Finishing third at the assessment center, he was one of four candidates whose
names were submitted to Chief Marrs for consideration. Major Lunow does not
contend that the scoring was retaliatory. Chief Marrs selected Cecil Meeks, who
tied for the highest score at the assessment center, had been a rideout, and was not
active in the union. Major Lunow testified that he believed that Mr. Meeks was
as qualified as he was for the promotion, but that Chief Marrs’ failure to select
him was retaliation for his union activity.
To overcome a motion for summary judgment, however, Major Lunow must
support that belief with competent evidence. One potential source is direct
evidence. See Quinn v. Vill. of Elk Grove Bd. of Fire & Police Comm’rs, No. 01-
C-8504, 2002 WL 31875464, at * 5 (N.D. Ill. Dec. 24, 2002) (denying summary
judgment on plaintiffs’ freedom-of-association claim because fire chief’s written
evaluation demonstrated that he took plaintiffs’ union leadership into account
when he interviewed them for a promotion). But there is no direct evidence that
Chief Marrs considered Major Lunow’s union activity when he declined to
promote him.
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Instead, Plaintiffs point to the previously mentioned affidavits of other
union activists, and to the fact that no union activist had been promoted to district
chief in suppression during Chief Marrs’ tenure. The affidavits, however, merely
express the union activists’ “belie[f]” and “opinion” that Chief Marrs has denied
Major Lunow, Major Hanson, and other union leaders promotions because of their
union activity. Aplt’s App. 544, 548. Once again, these statements are entitled to
no weight because they are merely conclusory expressions of personal belief,
without reference to supporting evidence. See Murray, 45 F.3d at 1422; Tavery,
32 F.3d at 1427 n.4.
As for the assertion that no union activist had been selected district chief in
suppression by Chief Marrs, Plaintiffs would need to provide more context before
this “statistical” fact would be probative. We have no idea, for example, how
often a union activist (however defined) advanced to the final stage of the
promotion process and lost out to a non-activist with lower test scores. All the
record shows in this regard is what we have already stated: three of the Plaintiffs
sought promotion on 11 occasions, were disqualified on 10 of those occasions by
testing that is not challenged as discriminatory, and failed on the 11th occasion
because Chief Marrs selected an equally qualified person who scored higher on
the unchallenged testing. This is hardly evidence of anti-union retaliation.
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We hold that the district court properly granted summary judgment on
Major Lunow’s claim that he was denied promotion to the position of Special
Teams Coordinator in retaliation for his union activity.
3. Major Hanson’s non-promotion claims
Finally, Major Hanson alleges that Chief Marrs refused to promote him to
the position of district chief in the Department’s support division because of his
union activity. Major Hanson progressed beyond the assessment center and had
his name submitted to Chief Marrs for selection on the two occasions he sought
promotion: in 1994, when he applied for the position of Chief Training Officer,
and in 1997, when he applied to become Chief Safety Officer.
In 1994 Chief Marrs promoted James Reynolds rather than Major Hanson to
the Chief Training Officer position. Major Hanson testified that Mr. Reynolds
was as qualified as he was but that Chief Marrs should have selected him, and
that “[t]he denial of that promotion I have no doubts stemmed from the many
controversial things that I did as a union officer and when I condemned Chief
Marrs in writing as no one else had ever done before in my capacity as editor of
the Bugle and Dispatch.” Aplts’ App. 457.
Yet Plaintiffs point to no direct evidence regarding what factors Chief
Marrs actually considered when he made his decision, and their only
circumstantial evidence of anti-union bias is the same evidence discussed above
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with respect to the other Plaintiffs. Thus, Major Hanson has failed to create a
genuine issue of fact as to whether his union activity was a motivating factor
behind his failure to be promoted to Chief Training Officer, and his claim must
fail.
Likewise, Major Hanson has failed to present evidence that anti-union bias
was the reason he was not selected Chief Safety Officer in 1997. The final stage
of the promotion process for that position was a scored interview before a panel
of three firefighters from the Department. Major Hanson had the lowest interview
score of the five candidates whose names were forwarded to Chief Marrs for
selection; Bryan Heirston had the highest score, and the interviewers
recommended that Chief Marrs select Mr. Heirston. (Again, Plaintiffs make no
allegation in their briefs that Major Hanson improperly was given a low score
because of his union activity.)
Chief Marrs selected Mr. Heirston, who at the time was active in union
affairs at the national level. Major Hanson testified that he was never told that
his union activity was the reason that he did not get the promotion, but stated that
he knows his union activity was the reason, because “[i]t’s as plain as the nose on
your face, it’s an accepted fact, past practices ha[ve] proven it out.” Aplts’ App.
at 452. Such an assertion is not evidence.
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Accordingly, there is insufficient evidence from which a reasonable jury
could infer that Major Hanson’s union activity was a motivating factor behind his
failure to be promoted. His claim fails.
V. CONCLUSION
We hold that Plaintiffs have failed to present evidence sufficient to create a
genuine issue of fact regarding whether Defendants violated their rights to free
speech or free association. Hence, the district court properly granted summary
judgment in favor of both Chief Marrs and the City. We AFFIRM the judgment
of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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Lunow v. City of Oklahoma City
Court: Court of Appeals for the Tenth Circuit
Date filed: 2003-03-28
Citations: 61 F. App'x 598
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