United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 19, 2006
Charles R. Fulbruge III
Clerk
No. 05-61157
Summary Calendar
WILLIE MCLAURIN, et al.,
Plaintiff-Appellants,
versus
THE CITY OF JACKSON FIRE DEPARTMENT, et al.,
Defendants,
THE CITY OF JACKSON FIRE DEPARTMENT,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:03-CV-294BN
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Before JOLLY, DENNIS, and CLEMENT Circuit Judges.
PER CURIAM:*
Plaintiff-appellants appeal the district court’s grant of
summary judgment in favor of defendant-appellees in this 42 U.S.C.
§ 1983 case. We affirm.
Plaintiff-appellants are firefights employed by the City of
Jackson Fire Department and are also members of a local union,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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International Association of Fire Fighters (IAFF). As candidates
for a promotion to the lieutenant position, they took a test in
1999. They had been told that the test would consist of a timed
pump test, a written test, and an interview. Additionally, they
had been informed that if the testing criteria change, they would
be given 21 days notice and that any added or omitted criteria
would have the prior approval of the Department of Justice (“DOJ”).
However, on testing day, they were told of changes to the test,
which had garnered no prior approval by DOJ; furthermore, they
realized the test would not be administered by an industrial
psychologist. Finally, they allege that non-union members were
allowed to wear identifying pins, and that union members were
treated differently on the test day. Plaintiff-appellants
thereafter complained to their employer, the City, alleging
discrimination.
When the City took no corrective action, the firefighters sued
under 42 U.S.C. § 1983, alleging that they were retaliated against
for their first amendment-protected free speech and association.
The City filed a motion for summary judgment, which the district
court granted. The district court found that the firefighters
failed to identify any speech chilled by the City’s conduct.
Additionally the district court decided that the firefighters had
shown neither an adverse employment action nor a causal connection,
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as required to maintain a prima facie case of retaliation under
Section 1983.
We review a grant of summary judgment de novo, applying the
same standard as the district court. Gowesky v. Singing River
Hospital Systems, 321 F.3d 503, 507 (5th Cir. 2003). To prevail on
a First Amendment retaliation claim under § 1983, the firefighters
must show that: (1) they engaged in a constitutionally protected
activity; (2) they suffered an adverse employment action; (3) there
was a causal connection between the two; and (4) there was an
execution of a policy, custom, or practice of the city that caused
the adverse action. Sharp v. City of Houston, 164 F.3d 923, 932
(5th Cir. 1999).
We assume without deciding that membership in a union
constitutes a protected activity. However, even assuming arguendo
that changes to the test and irregularities in the testing
procedure qualify as adverse employment actions in the wake of the
Title VII retaliation case of Burlington N. & Santa Fe Ry. Co. v.
White, 126 S.Ct. 2405 (2006), the firefighters fail to establish
the requisite causal connection in that they point to no evidence
that would indicate that their alleged adverse employment actions
were a result of their union membership. To establish a causal
connection, they must first show that the decision maker was aware
of the protected activity. Manning v. Chevron Chem. Co., 332 F.3d
874, 883 (5th Cir. 2003). In the case at bar, the firefighters
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provide no concrete evidence as to the identity of the decision
maker; even if the alleged decision maker was responsible for the
adverse employment actions, there is no evidence that he was aware
of the firefighters’ union membership. Beyond decision maker
awareness, they must also show that their protected activity was a
substantial or motivating factor for the adverse employment
actions. Morris v. Lindau, 196 F.3d 102, 111 (2d Cir. 1999).
Here, the firefighters offer no evidence that would show that any
alleged decision maker was unhappy with their union membership.
For the foregoing reasons, we AFFIRM.
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