IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 00-11191
(Summary Calendar)
_______________________________
GEORGE DANIELS,
Plaintiff-Appellant,
versus
CITY OF ARLINGTON, TEXAS; THERON BOWMAN,
Chief of Police, Arlington, Texas,
Defendants-Appellees.
_________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________
April 9, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-Appellant George Daniels appeals two rulings by the
district court in this First Amendment employment case: the denial
of his motion for partial summary judgment, and the grant of
summary judgment in favor of Defendants-Appellees, the City of
Arlington and its police chief (collectively, “the city”). Finding
Daniels’s claims to be meritless, we affirm the ruling of the
district court.
I.
FACTS AND PROCEEDINGS
Daniels was an Arlington police officer for thirteen years.
While working in a plainclothes position, he began wearing on his
shirt a small, gold cross pin (“the pin”) as a symbol of his
evangelical Christianity. He continued to wear the pin after he
was reassigned to a uniformed position, which brought him into
conflict with Arlington Police Department General Order No.
205.02(C)(2)(c) (“the no-pins policy”). The General Order, as
revised in November 1997, states that: “No button, badge, medal,
or similar symbol or item not listed in this General Order will be
worn on the uniform shirt unless approved by the Police Chief in
writing on an individual basis.”
Daniels requested in writing that then-Police Chief David
Kunkle make an exception to the policy and allow him to continue
wearing the pin on his uniform. Kunkle declined, writing to
Daniels that “I have not authorized any non-department related pins
and I do not intend to do so.” Daniels refused Kunkle’s order to
remove the pin from his uniform shirt and did not respond to the
police chief’s offer of accommodations, which included: (1) wearing
a cross ring or bracelet instead of the pin; (2) wearing the pin
under his uniform shirt or collar; or (3) transferring to a non-
uniformed position, where he could continue to wear the pin on his
shirt. Daniels declined these alternatives and ultimately was
fired for insubordination.
Daniels sued, claiming that the no-pins policy is
2
unconstitutional on its face, and that he had been the victim of
intentional religious discrimination. The district court rejected
Daniels’s claims: It denied his motion for partial summary
judgment on the facial challenge to the regulation and granted the
city’s summary judgment motion, dismissing the remainder of
Daniels’s claims. He timely perfected his appeal of both
decisions.
II.
ANALYSIS
A. Standard of Review
This case is on appeal from a denial of partial summary
judgment and dismissal on summary judgment. Therefore, we review
the record de novo, applying the same standard as the district
court.1 A motion for summary judgment is properly granted only if
there is no genuine issue as to any material fact.2 An issue is
material if its resolution could affect the outcome of the action.3
In deciding whether a fact issue has been created, the court must
1
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377,
380 (5th Cir. 1998); see also Bradshaw v. Pittsburg Indep. Sch.
Dist., 207 F.3d 814, 816 (5th Cir. 2000) (“For purposes of
appellate review, the ‘inquiry into the protected status of
speech is one of law, not fact.’”) (quoting Kirkland v. Northside
Indep. Sch. Dist., 890 F.2d 794, 797 (5th Cir. 1989) (quoting
Connick v. Myers, 461 U.S. 138, 148 n.7 (1983))).
2
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
3
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
3
view the facts and the inferences to be drawn therefrom in the
light most favorable to the nonmoving party.4
The standard for summary judgment mirrors that for judgment as
a matter of law.5 Thus, the court must review all of the evidence
in the record, but make no credibility determinations or weigh any
evidence.6 In reviewing all the evidence, the court must disregard
all evidence favorable to the moving party that the jury is not
required to believe, and should give credence to the evidence
favoring the nonmoving party as well as to the evidence supporting
the moving party that is uncontradicted and unimpeached.7
B. Facial Challenge to the No-Pins Policy
Daniels asserts that Arlington Police Department General Order
No. 205.02(C)(2)(c), one of many provisions regulating uniform
standards for Arlington police, is an invalid prior restraint of
speech protected by the First Amendment. He contends that the
order is overbroad, impermissibly giving the police chief
unfettered discretion to determine what expression may be displayed
on an officer’s uniform.
This argument is unavailing. As the district court correctly
4
Olabisiomotosho v. City of Houston, 185 F.3d 521, 525
(5th Cir. 1999).
5
Celotex, 477 U.S. at 323.
6
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
120 S. Ct. 2097, 2102 (2000).
7
Id. at 2110.
4
noted, “[a] police officer’s uniform is not a forum for fostering
public discourse or expressing one’s personal beliefs.” The
Supreme Court has upheld appropriate restrictions on the First
Amendment rights of government employees, specifically including
both military and police uniform standards.8 We reached the same
conclusion in a case closely analogous to this one, United States
Dep’t of Justice v. Federal Labor Relations Auth. (“FLRA”), in
which we upheld department regulations prohibiting border patrol
agents from wearing union pins on their uniforms.9
The city argues that the deferential rational review standard
should be applied to the Arlington Police Department’s no-pins
policy, a test it surely passes.10 We need not decide whether that
is the singularly applicable test, however, because the no-pins
policy survives even the stricter standard for reviewing
restrictions on government employee speech promulgated by the
Supreme Court in Pickering v. Bd. of Educ.11 The Pickering standard
balances “the interests of the [employee], as a citizen, in
commenting upon matters of public concern and the interests of the
8
See, e.g., Goldman v. Weinberger, 475 U.S. 503 (1986)
(upholding against First Amendment challenge military uniform
regulation barring wearing of yarmulke); Kelley v. Johnson, 425
U.S. 238 (1976) (upholding police uniform and grooming
standards).
9
955 F.2d 998 (5th Cir. 1992).
10
See, e.g., Kelley, 425 U.S. at 237.
11
391 U.S. 563 (1968).
5
State, as employer, in promoting the efficiency of the public
services it performs through its employees.”12
In FLRA, we assumed that the speech involved was a matter of
public concern, then applied the Pickering balancing test and
concluded that the government’s interest in promoting the
efficiency of the services provided by its employees outweighed the
employees’ interest in engaging in the protected speech.13 We found
that “a law enforcement agency’s anti-adornment policy is [ ]
entitled to deference when weighing the government’s interest
against the employee’s interest under the Pickering/Connick [v.
Myers] First Amendment test.”14
We have used two tests, both derived from Connick, to
determine whether speech relates to a “legitimate public concern.”15
Daniels fails both. The first, the citizen-employee test, turns on
12
Id. at 568; see also Connick v. Myers, 461 U.S. 138
(1983). Several circuit courts have applied the Pickering test
to public employee claims involving religious speech or the free
exercise of religion. See, e.g., Lumpkin v. Brown, 109 F.3d
1498, 1500-01 (9th Cir. 1997); Brown v. Polk County, Iowa, 61
F.3d 650, 658 (8th Cir. 1995) (en banc), cert. denied, 516 U.S.
1158 (1996) (“[Pickering] dealt with free speech rather than the
free exercise of religion, but because the analogy is such a
close one, and because we see no essential relevant differences
between those rights, we shall endeavor to apply the principles
of Pickering to the case at hand.”); Baz v. Walters, 782 F.2d
701, 708 (7th Cir. 1986).
13
955 F.2d at 1005-06.
14
Id. at 1006.
15
Kennedy v. Tangipahoa Parish Library Bd. of Control, 224
F.3d 359, 366 (5th Cir. 2000).
6
whether a public employee “‘speaks not as a citizen upon matters of
public concern, but instead as an employee upon matters only of
personal interest.’”16 The second evaluates the content, form, and
context of a given statement. None of these three factors favors
Daniels’s argument. The content of his speech —— symbolic
conveyance of his religious beliefs —— is intensely personal in
nature. Its form melds with the authority symbolized by the police
uniform, running the risk that the city may appear to endorse
Daniels’s religious message.17 The final factor, context, perhaps
weighs most heavily against Daniels. Although the First Amendment
protects an individual’s right, for example, to shout, “Fire!”
while riding a surfboard on the Pacific swells, it offers no such
protection to the same speech uttered in a crowded theater.18
Visibly wearing a cross pin —— religious speech that receives great
protection in civilian life —— takes on an entirely different cast
when viewed in the context of a police uniform. Although personal
religious conviction —— even the honestly held belief that one must
announce such conviction to others —— obviously is a matter of
great concern to many members of the public, in this case it simply
16
Id. (quoting Connick, 461 U.S. at 147).
17
See, e.g., County of Allegheny v. ACLU, 492 U.S. 573
(1989).
18
See Schenck v. United States, 249 U.S. 47, 52 (1919)
(“[T]he character of every act depends upon the circumstances in
which it is done. The most stringent protection of free speech
would not protect a man in falsely shouting fire in a theatre and
causing a panic.”) (citation omitted).
7
is not a matter of “public concern” as that term of art has been
used in the constitutional sense.19
Because Daniels’s communication of his personal religious
views through the pin is not speech addressing a “legitimate public
concern,” the departmental policy does not offend the First
Amendment. Application of the Pickering balancing test is thus
precluded.20 Yet, even were we to follow the path we blazed in FLRA
and assume arguendo that Daniels’s speech does involve a public
concern, we would reach the same result. In FLRA, we held that “it
is reasonable to conclude that allowing border patrol agents to
wear union pins would interfere with an appearance to the public of
neutrality and impartiality, which is important to the mission of
19
Contrast the religious message Daniels seeks to convey
with the Supreme Court’s characterization of the school funding
question at issue in Pickering:
[T]he question whether a school system requires
additional funds is a matter of legitimate public
concern on which the judgment of the school
administration, including the School Board, cannot, in
a society that leaves such questions to popular vote,
be taken as conclusive. On such a question free and
open debate is vital to informed decision-making by the
electorate.
391 U.S. at 571-72.
20
See Connick, 461 U.S. at 146 (concluding that if
employee’s speech “cannot be fairly characterized as constituting
speech on a matter of public concern, it is unnecessary for us to
scrutinize the reasons for her discharge”); Teague v. City of
Flower Mound, 179 F.3d 377, 383 (5th Cir. 1999).
8
all law enforcement agencies.”21
Although it is true that unions are secular and religions
sectarian, the analogy between Daniels’s case and FLRA is tight.
As recognized in FLRA, the city through its police chief has the
right to promote a disciplined, identifiable, and impartial police
force by maintaining its police uniform as a symbol of neutral
government authority, free from expressions of personal bent or
bias. The city’s interest in conveying neutral authority through
that uniform far outweighs an officer’s interest in wearing any
non-department- related symbol on it. Daniels’s facial challenge
to the no-pins policy fails.
C. Grant of the City’s Motion for Summary Judgment
Having reviewed de novo the legal claims Daniels asserts on
appeal, we affirm the district court’s decision to dismiss his case
with prejudice on summary judgment.
1. First Amendment
For the reasons already discussed, the district court found
that Arlington Police General Order No. 205.02(C)(2)(c) as applied
to Daniels did not infringe his constitutional rights of free
speech, expression, or association. The court also found that the
no-pins policy is facially neutral and generally applicable, and
only incidentally burdens Daniels’s free exercise of his religion.
Therefore, concluded the court, the rule is acceptable under the
21
955 F.2d at 1007.
9
teaching of Employment Div., Dep’t of Human Resources of Oregon v.
Smith.22
On appeal, Daniels appears to focus on a single sentence in
which the district court stated: “Plaintiff’s argument that
wearing a cross on his police uniform is mandated by his religion
is wholly without merit.” Daniels is correct in arguing that it is
improper for a court to assess what activities are mandated by
religious belief.23 Particularly when read in context with the
court’s pronouncement as a whole, we do not view this sentence as
a comment on Daniels’s religious beliefs, but rather as a rejection
of the merits of his legal claim. Even if the court’s perhaps-
unfortunate phrasing allows for Daniels’s interpretation, however,
it does not undercut the validity of the conclusion that the no-
pins policy does not target religion but only incidentally affects
Daniels’s individual religious practice, and thus is acceptable
under Smith.
Our conclusion that Daniels has not justified an exception to
the police department’s no-pins policy is analogous to the one we
reached in rejecting a Muslim prison inmate’s complaint after he
was denied an exemption from the Texas prison policy requiring all
inmates to be clean-shaven, even though wearing a beard was a tenet
22
494 U.S. 872 (1990).
23
See id. at 887 (warning that “courts must not presume to
determine the place of a particular belief in a religion or the
plausibility of a religious claim”).
10
of his faith.24 After noting that the grooming policy of the prison
has a legitimate penological justification, we found that the
policy does not violate Muslim prisoners’ free exercise of
religion, but “merely removes or reduces one of many avenues by
which they may manifest their faith.”25 The same is equally true
of Daniels’s complaint: The no-pins policy serves a legitimate
governmental purpose in the context of uniformed law enforcement
personnel, and Daniels undoubtedly has myriad alternative ways to
manifest this tenet of his religion.
2. Due Process and Title VII
The district court found that Daniels “presented no admissible
evidence to suggest that he was terminated for the purpose of
suppressing his rights protected by the First Amendment.” The
court therefore rejected his Due Process and Title VII26 claims.
Daniels contends that the accommodations offered by the city were
unreasonable, presenting a fact issue on his Title VII claim. He
also argues that he raised a fact issue as to Chief Kunkle’s
motivation, and whether Kunkle discriminated against religious
speech.
We agree with the district court that Daniels presented no
24
See Green v. Polunsky, 229 F.3d 486 (5th Cir. 2000).
Inmates with medical conditions precluding shaving were allowed
to wear short beards.
25
Id. at 491.
26
42 U.S.C.A. § 2000e-2(a)(1).
11
evidence that he had been terminated to suppress his First
Amendment rights. Therefore, no genuine issue of material fact
exists as to his claims under the Due Process Clause.27 As for his
Title VII claims, we find that Daniels met that statute’s
requirements for establishing a prima facie case of religious
discrimination, having produced summary judgment evidence that
(1) he had a bona fide religious belief that conflicted with an
employment requirement; (2) he informed his employer of this
belief; and (3) he was discharged for failing to comply with the
conflicting employment requirement.28 With a prima facie case
established, the burden shifted to the employer to show that it was
unable reasonably to accommodate Daniels’s religious needs without
undue hardship.29 This the city has done.
The only accommodation Daniels proposes is unreasonable and an
undue hardship for the city as a matter of law. A police
department cannot be forced to let individual officers add
religious symbols to their official uniforms. The record shows,
furthermore, that Daniels failed to respond to the police chief’s
27
See, e.g., Bishop v. Wood, 426 U.S. 341, 350 (1976);
Williams v. Texas Tech Univ. Health Scis. Ctr., 6 F.3d 290, 294
(5th Cir. 1993).
28
Weber v. Roadway Express, 199 F.3d 270, 273 (5th Cir.
2000); Turpen v. Mo.-Kan.-Tex. R.R. Co., 736 F.2d 1022, 1026 (5th
Cir. 1984).
29
Turpen, 736 F.2d at 1026; see also Ansonia Bd. of Educ.
v. Philbrook, 479 U.S. 60, 68 (1986) (“By its very terms the
statute directs that any reasonable accommodation by the employer
is sufficient to meet its accommodation obligation.”).
12
reasonable offers of accommodation. He cannot reject the city’s
good-faith efforts at accommodation because he did not fulfill his
duty of cooperation.30
Finally, Daniels raised no fact issue as to Chief Kunkle’s
motivation. The undisputed facts show the opposite of pretext:
The chief never denied that the cross is a religious symbol. The
parties disagree only as to whether such symbols are appropriate
accoutrements for police uniforms. Daniels’s Title VII claim
fails.
3. Equal Protection
Daniels also contends that genuine fact issues exist as to
whether the city discriminated against religious speech by allowing
other forms of symbolic speech. Daniels testified that he had
seen, or heard about, many items of ornamentation worn on uniforms
during his thirteen years with the Arlington Police. Former Chief
Kunkle stated that before the no-pins order became effective in
November 1997, he had approved pins promoting programs in which the
city or police department directly participated, such as the DARE
anti-drug campaign. In 1990, Kunkle had encouraged officers to
wear red ribbons commemorating the 1985 slaying of federal drug
agent Enrique Camarena. Daniels also points to his own affidavit,
30
See, e.g., Brener v. Diagnostic Ctr. Hosp., 671 F.2d
141, 146 (5th Cir. 1982) (“Although the statutory burden to
accommodate rests with the employer, the employee has a
correlative duty to make a good faith attempt to satisfy his
needs through means offered by the employer.”).
13
in which he stated that he attended a supervisory meeting in
January 1997, in which Kunkle said he would not authorize the
wearing of cross pins on uniforms because they “might offend
someone.”31
The district court nevertheless found that Daniels failed to
produce any competent summary judgment evidence that the city
discriminated against religious speech while allowing other forms
of symbolic speech. In fact, the court found that the evidence
showed Daniels was the only officer in the Arlington Police
Department who had applied for an exception to the no-pins policy
since its enactment. Viewing the facts and their inferences in the
light most favorable to Daniels, we are convinced that he has not
proven any disparate treatment or shown that any non-Christian pin
request was approved or otherwise handled differently from his. He
has created no genuine issue of material fact on this point.
4. Texas Laws and Constitution
The district court rejected Daniels’s argument that the police
chief’s order to remove his pin from his uniform was unlawful under
Texas law. The court held that the state constitution and laws,
including the Texas Commission on Human Rights Act (“TCHRA”),
31
A contemporaneously prepared summary of a January 9,
1997, employee representatives’ meeting states that any
unauthorized pins were ordered removed: “Police officers must
accept that their appearance must be professional and neutral and
inoffensive to public sensibilities. Even seemingly inoffensive
religious symbols are not to be worn where they can be viewed by
the public because they may indicate to others hostility to their
own religious beliefs.”
14
afford Daniels no greater protection on his claims than does
federal law, and that he was properly terminated for
insubordination after refusing to comply with the chief’s order.
Although Daniels assigns error to these conclusions, the Texas
Supreme Court has held that the TCHRA is modeled on Title VII of
the federal Civil Rights Act, and should be interpreted in the same
manner.32 Daniels’s civil rights claims under the state
constitution are similarly unavailing because tort damages are not
recoverable for violations of the Texas Constitution.33
III.
CONCLUSION
We discern no merit in any of Daniels’s assignments of error.
A police department does not violate the First Amendment when it
bars officers from adorning their uniforms with individually chosen
adornments, even when those decorations include symbols with
32
See Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex.
1987, no writ); see also Dallas Fire Fighters Ass’n v. City of
Dallas, 885 F. Supp. 915, 927 (N.D. Tex. 1995); Grant v. Joe
Myers Toyota, Inc., 11 S.W.3d 419, 423 (Tex. App. —— Houston
[14th Dist.] 2000, no pet.) (evaluating TCHRA religious
accommodation claim by applying federal interpretations of Title
VII).
33
See Gillum v. City of Kerrville, 3 F.3d 117, 122 (5th
Cir. 1993) (“Texas courts have not recognized a violation of
Article I, Section 8, as an actionable constitutional tort.”);
Favero v. Huntsville Indep. Sch. Dist., 939 F. Supp. 1281, 1296
(S.D. Tex. 1996), aff’d, 110 F.3d 793 (5th Cir. 1997) (rejecting
claim for damages under Tex. Const. art. I, § 6); City of
Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex. 1995, writ
denied) (“We hold there is no implied private right of action for
damages arising under the free speech and free assembly sections
of the Texas Constitution.”).
15
religious significance. Therefore, the decision of the district
court is
AFFIRMED.
16