CWA v. Ector Cty Hosp Dist , 402 F.3d 503 ( 2004 )

  •                     REVISED DECEMBER 21, 2004         United States Court of Appeals
                                                                   Fifth Circuit
                          FOR THE FIFTH CIRCUIT                 F I L E D
                                                               December 1, 2004
                               No. 03-50230
                                                            Charles R. Fulbruge III
    ECTOR COUNTY HOSPITAL DISTRICT, doing business as Medical
    Center Hospital; ET AL
    ECTOR COUNTY HOSPITAL DISTRICT, doing business as Medical
    Center Hospital
              Appeal from the United States District Court
                    for the Western District of Texas
    Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.
    WIENER, Circuit Judge:
         Appellee Urbano Herrera, a carpenter employed by the Ector
    County Hospital District (the “Hospital”), was disciplined by the
    Hospital after he wore a “Union Yes” lapel button in violation of
    the Hospital’s dress code.    Herrera brought suit under § 1983,
    claiming that the anti-adornment provision of the dress code policy
    violated his First Amendment rights.   The district court granted a
    motion for judgment as a matter of law (“JMOL”) filed jointly by
    intervening plaintiff Communication Workers of America (“CWA”, or
    the “Union”) and Herrera (collectively, “Plaintiffs”), awarding
    monetary damages and injunctive relief.         The Hospital now appeals,
    advancing numerous errors by the district court, including its
    ruling that Herrera’s wearing of the union button was speech on a
    matter of public concern, its refusing to submit specified factual
    questions to the jury, and its awarding of attorneys’ fees and
    litigation costs to Plaintiffs.         We affirm.
                            I.   Facts and Proceedings
         While employed by the Hospital as a carpenter, Herrera became
    a volunteer organizer for the CWA.          As his and other CWA members’
    organizing efforts progressed, more and more Hospital employees
    began    to   attend   weekly   union      meetings   at       Herrera’s   home.
    Eventually, 37 Hospital employees became dues-paying members of the
    Union.   At one such meeting, Herrera and other Hospital employees
    who supported the Union’s organizing efforts received “Union Yes”
    lapel buttons from CWA representatives. Herrera and others decided
    to wear the buttons during their work shifts at the Hospital in
    knowing violation of the Hospital’s dress code, which contains a
    specific non-adornment prohibition that forbids the wearing of most
    such insignia.
         While wearing the “Union Yes” buttons during their work shift,
    Herrera and     a   co-worker   were   confronted     by   a    supervisor   who
    informed the pair that the buttons violated the dress code and
    asked them to remove the buttons.           Herrera refused to remove his
    button.     Subsequently,     while   Herrera   was    in   the   Hospital’s
    cafeteria on break, he was confronted by his direct superior, John
    Durham, and again instructed to remove the button.             Durham did not
    back off, and after the tenor of the confrontation elevated,
    Herrera eventually told Durham that “I’m not going to take it off.
    If you want it off, then you take it off.”          When Herrera was then
    instructed by Durham to accompany him to his office, Herrera pumped
    his fist in the air and shouted “union up!” as he followed Durham
    out of the cafeteria.
         After Herrera arrived at Durham’s office, he read the dress
    code and removed the union button.        Herrera thereafter decided to
    put the button back on, after he telephoned a CWA representative
    and was assured that he could not be required to remove the button.
    Following yet another confrontation with Durham, who again insisted
    that the button be removed, Herrera was advised that he would be
    suspended for three days without pay for his refusal to remove the
    button.     His disciplinary record was expanded to reflect the
    incident.   Because of his being disciplined, Herrera received only
    a 3% annual raise, rather than the usual 4%.
         Herrera filed the instant action pursuant to § 1983, seeking
    (1) compensation for lost pay and benefits, (2) an injunction
    prohibiting future enforcement by the Hospital of its policy
    against the peaceable wearing of pro-union buttons by Herrera and
    other   union   supporters,    (3)    declaratory     relief    holding   the
    Hospital’s ban on the peaceable wearing of pro-union buttons to be
    unconstitutional, and (4) attorneys’ fees. The Union intervened as
    a co-plaintiff.   The Hospital filed a Motion to Dismiss and, in the
    alternative, a Motion for Summary Judgment.      Plaintiffs responded
    by filing a Motion for Partial Summary Judgment.      In adjudicating
    the various summary judgment motions, the district court concluded
    that: (1) Herrera’s speech was on a matter of public concern; (2)
    this speech was a substantial or motivating factor in the adverse
    employment actions he suffered; and (3) the Hospital would not have
    taken those adverse actions absent the protected speech.1
         The district court also concluded, however, that more evidence
    would have to be adduced for the Court to complete the balancing
    test required by Pickering v. Board of Education2 and Connick v.
    Myers.3   This test is conducted to “arrive at a balance between the
    interests of the [employee], as a citizen, in commenting upon
    matters of public concern and the interest of the State, as an
    employer, in promoting the efficiency of the public services it
    performs through its employees.”4      The district court stated that
    it needed more information before it could determine (1) the extent
          See Communications Workers of Am. v. Medical Ctr. Hosp., 
    241 F. Supp. 2d 601
     (E.D. La. 2002) (“CWA I”).
    391 U.S. 563
    461 U.S. 138
             Pickering, 391 U.S. at 568.
    of Herrera’s interaction with the public during his work hours,5
    and (2) the disruptive effect, if any, of his wearing the button on
    the Hospital’s operations.
          Before the jury trial began, the district court ruled on the
    basis of the summary judgment record that Plaintiffs had carried
    their burden of establishing a prima facie case of a Constitutional
    violation.    Therefore, ruled the district court, the Hospital had
    the burden of producing evidence on the remaining questions that
    had been left unresolved in the summary judgment and remained
    necessary for the completion of the Pickering/Connick balancing
    test, viz.,    whether    Herrera’s    employment   involved     significant
    interaction with the public and whether his actions threatened to
    disrupt the Hospital’s operations.
          Following   completion     of    the   Hospital’s   case   at   trial,
    Plaintiffs filed a motion for JMOL, which the court granted.6           The
    Hospital timely filed a notice of appeal, contesting virtually
    every factual finding, legal conclusion, and procedural ruling made
    by the district court.
                                   II.    Analysis
    A.   Standard of Review
           We have considered this factor in the past, as it must
    necessarily influence the determination of how the speech at issue
    impacts the public entity’s operation. See, e.g., Smith v. United
    502 F.2d 512
     (5th Cir. 1974).
           See Communications Workers of Am. v. Ector County Hosp.
    241 F. Supp. 2d 617
     (W.D. Tex. 2002) (“CWA II”).
          We review de novo a district court’s ruling on a Rule 50(a)
    Motion for JMOL, applying the same standard as the district court.
    In so doing, we review the entire record in the light most
    favorable to the non-movant and draw all reasonable inferences in
    favor of that party.7    A district court “may not grant a Rule 50(a)
    motion ‘unless a party has been fully heard on an issue and there
    is no legally sufficient evidentiary basis for a reasonable jury to
    find for that party on that issue.’”8
          We   review   a   grant   of   injunctive   relief   for   abuse   of
    discretion; findings of fact for clear error; and conclusions of
    law de novo.    When fashioning its injunctive relief, a district
    court abuses its discretion if it (1) relies on clearly erroneous
    factual findings; (2) relies on erroneous conclusions of law; or
    (3) misapplies the factual or legal conclusions.9 We review awards
    of attorneys fees and costs for abuse of discretion.10
    B.   Substantive Issues Raised by the Hospital
          At the heart of this case lies the question whether the
    Hospital’s decision to discipline Herrera violated his rights to
          See, e.g., Delano-Pyle v. Victoria County, 
    302 F.3d 567
    , 572
    (5th Cir. 2002).
          Id. (quoting Ellis v. Weasler Eng’g, Inc., 
    258 F.3d 326
    , 337
    (5th Cir. 2001)).
           Peaches Entertainment Corp. v. Entertainment Repertoire
    Assocs., Inc., 
    62 F.3d 690
    , 693 (5th Cir. 1995).
            Alameda Films S A De C V v. Authors Rights Restoration
    Corp., Inc., 
    331 F.3d 472
    , 483 (5th Cir. 2003).
    freedom of speech or freedom of association guaranteed by the First
    Amendment. The Hospital contends that the anti-adornment component
    of its dress code is content-neutral and does not implicate free
    speech or free association.   The anti-adornment policy states that
    “ONLY pins representing the professional association and the most
    current hospital service award may be worn.”11   Plaintiffs counter
    that this policy, as applied by the Hospital, effectively affixes
    conditions to public employment that violate the First Amendment
    expression rights of Hospital employees such as Herrera and others
    similarly situated.
            The dissent bases much of its argument on the alleged
    content-neutrality of the dress code. This argument is belied by
    the language of the dress code itself and the hospital’s arguments.
    As noted by the dissent in its discussion of Police Department of
    City of Chicago v. Mosley, in which the Supreme Court struck down
    a city ordinance that prohibited all picketing within 150 feet of
    a school except peaceful picketing of a school involved in a labor
    dispute, “[t]he central problem with Chicago’s ordinance is that it
    describes permissible picketing in terms of its subject matter . .
    . The operative distinction is the message on a picket sign.” 
    408 U.S. 92
    , 95 (1972). Here, the operative distinction is the message
    of the button. The dress code allows Hospital employees to wear
    buttons that represent the professional association or the current
    Hospital award. In contrast, buttons with any other messages on
    them are forbidden by the dress code. Further, the record reflects
    that “employees are allowed on certain occasions to wear pins
    pertaining to the Great American Smoke-Out Day, blood donations,
    and the annual Permian Basin High School versus Odessa High School
    football game.”    CWA I, 241 F. Supp. 2d at 607.        Thus, the
    Hospital’s dress code categorizes buttons based on their content,
    as did the regulations in Mosley.
         Further, as we note below, even the Hospital recognizes that
    the dress code affects the content of the buttons when it argues
    that even if we were to assume that the subject of the “Union yes”
    button is of public concern, the content of this particular button
    renders it unprotected. See infra note 31.
         Although government employees “have not relinquished the First
    Amendment rights they would otherwise enjoy as citizens to comment
    on matters of public interest,”12 the government as employer is
    entitled to manage employees to an extent that includes hiring,
    firing, and disciplining them.13        When a public employer adopts a
    policy that impinges on the speech of its employees, though, we
    apply the Pickering/Connick balancing test, weighing the interests
    of the employee, as a citizen, to comment on matters of public
    concern against the interests of the government, as an employer, to
    promote efficiency in its providing of services.14
         In this circuit, we have integrated that balancing test into
    a larger four-step analysis:      First, the employee must demonstrate
    that the speech at issue addressed a matter of public concern.        If
    it   can     be   characterized    as    such,   we   next   apply   the
    Pickering/Connick balancing test, thereafter continuing to the
    final two steps only if we conclude that, on balance, the public
    employee’s speech rights outweigh the public employer’s interest in
    the efficient providing of services.         These first two steps are
    “legal in nature and are for the court to resolve.”15 The third and
    fourth steps are factual in nature, requiring determinations first
           United States v. Nat’l Treasury Employees Union, 
    513 U.S. 454
    , 465 (1995) (citations and internal quotations omitted).
              See Waters v. Churchill, 
    511 U.S. 661
    , 671-74 (1994).
              Pickering v. Bd. of Educ., 
    391 U.S. 563
    , 568 (1968).
              Branton v. City of Dallas, 
    272 F.3d 730
    ,739 (5th Cir. 2001).
    whether the protected speech was a substantial or motivating factor
    in the adverse employment decision; and, second, if it was, then
    whether the employer would have made the same employment decision
    in the absence of the protected speech, a “but for” inquiry.16
    1.   Deprivation of a Constitutional right in the exercise of an
         “official policy.”
         As a preliminary matter, we must determine whether the dress
    code is an “official” Hospital policy, for local governmental
    entities may be held liable under § 1983 only if deprivations of
    rights result from implementation of an official policy or custom.17
    It is thus error to assess liability to a local governmental unit
    for employment and personnel decisions made by officials who lack
    final policymaking authority in that area.18    Here, the Hospital
    argues in its appellate brief that Durham, the supervisor who
    actually disciplined Herrera, has “no policymaking authority, much
    less final policymaking authority.” Therefore, urges the Hospital,
    “no final policymaking authority was involved in the decision to
    suspend Herrera,” so there can be no liability here at all.
         The precedent relied on by the Hospital, however, addresses
    factual circumstances distinguishably different from those that
    frame the instant case.     Pembauer v. City of Cincinnati, for
           See, e.g., Bd. of the County Comm’rs v. Brown, 
    520 U.S. 397
    403 (1997).
           See, e.g., City of St. Louis v. Praprotnik, 
    485 U.S. 112
    (1988); Pembaur v. City of Cincinnati, 
    475 U.S. 469
    example, addresses when “municipal liability may be imposed for a
    single decision by municipal policymakers.”19           Similarly, City of
    St. Louis v. Praprotnik deals with “defin[ing] the proper legal
    standard for determining when isolated decisions by municipal
    officials or employees may expose the municipality itself to
    liability” under § 1983.20         Those cases, in other words, dealt with
    isolated acts that arguably were outside “official” policy; and,
    under such circumstances, it is appropriate to determine whether
    the state actor involved had “final policymaking authority” that
    would expose the municipality to liability.
           It is well settled, however, that a municipality may be held
    liable if its “official policies cause [its] employees to violate
    another person’s constitutional rights.”21             In other words, a
    municipality may be held liable if it “cause[s] a constitutional
    tort    through    ‘a     policy   statement,   ordinance,    regulation,   or
    decision      officially     adopted   and   promulgated     by   that   body’s
    officers,’”22 even if that official policy is enforced by someone
    who has no final policymaking authority.           This last fact does not
    change the character of the alleged injury or the policy under
    which that injury occurred; it is still an “injury ... inflicted by
                Pembaur, 475 U.S. at 480 (emphasis added).
                Praprotnik, 485 U.S. at 114 (emphasis added).
                Id. at 122.
           Id. at 121 (quoting Monell v. New York City Dep’t of Soc.
    436 U.S. 658
    , 690 (1978)) (emphasis added).
    a government’s ‘lawmakers or by those whose edicts or acts may
    fairly      be    said    to     represent        official     policy,’”   for     which
    “municipalities [can] be held liable.”23                      The crucial question,
    therefore, is whether the dress code is an official policy of the
    Hospital, not whether the Hospital employee who enforced the terms
    of that policy had final policymaking authority.
          That the Hospital’s dress code is an “official policy” is not
    seriously contested. Instead, the Hospital misleadingly focuses on
    the   decision-making            authority     of    its    employee,    Durham.      As
    Plaintiffs correctly point out, though, the dress code policy (1)
    was adopted by the Hospital’s Administrator and its Dress Code
    Committee,       (2)     bears    a   policy     number,     MCH-1027,   and   (3)   was
    officially revised in July 1999.                 Furthermore, some members of the
    Hospital’s Board of Directors —— the very entity identified by the
    Hospital as its official, final policymaker —— stated in affidavit
    testimony that the dress code was valid and enforceable.                             And,
    finally, if the dress code was not an official policy or was
    otherwise        invalid,      the    Hospital      had    several   opportunities    to
    disavow it during Herrera’s disciplinary process, but never did.
          These factors fully support the conclusion that, at the very
    least, the “final policymaker” identified by the Hospital (the
    Board) delegated the authority to establish the dress code to the
    Administrator. As the Supreme Court explained in Pembauer, “if the
               Praprotnik, 485 U.S. at 121-22 (quoting Monell, 436 U.S. at
    Board delegated its power to establish final employment policy ...
    the [delegate’s] decisions would represent county policy and could
    give rise to municipal liability.”24       We conclude that, at a
    minimum, such a delegation occurred in the instant case, and that
    the Administrator’s establishment and promulgation of the dress
    code constitute official Hospital policy.
    2.   The subject of Herrera’s “speech”: Public concern or personal
         We have never before decided expressly whether pro- or anti-
    union lapel pins constitute speech on a matter of public concern,
    although we assumed that they do in U.S. Department of Justice,
    Immigration and Naturalization Service v. Federal Labor Relations
    Authority.25    Noting that we have never explicitly made such a
    holding, the Hospital insists that, in wearing the pin, Herrera was
    speaking as an employee, not as a citizen, on “matters that address
    only his personal interest and personal employment conditions.”
    The Hospital’s repeated assertions on this point —— that Herrera’s
    speech “only related to the terms and conditions of [Herrera’s]
    employment and duties ... [it] related solely to his employment and
    not to a matter of concern to the community” —— simply do not hold
         First, the speech at issue, constituting as it did a show of
    support for the union and serving as it did to inform other
              Pembaur, 475 U.S. at 484, n.12 (emphasis in original).
    955 F.2d 998
    , 1005 (5th Cir. 1992).
    employees (and those members of the public who saw it) that a union
    organizing    drive   was   in   progress,   indisputably       concerned    the
    employment terms and conditions of all potential union members, not
    just Herrera.       Furthermore, the goals of union organizing at a
    functioning public facility will almost always entail potential
    costs and benefits that directly affect and concern the community
    at large, not just the employment conditions of that facility’s
    workers.     A successful union organizing drive can lead to price
    fluctuations for services provided by the facility, changes in the
    types of services offered by the facility, and political pressures
    centered around worker satisfaction.26                Obviously, then, it is
    simply incorrect to characterize a “Union Yes” button as addressing
    issues that are “solely and inherently personal.”
         Second, as the district court noted in its summary judgment
    order, courts that have considered this question have typically
    held that speech regarding union activities is speech on a matter
    of public concern.     In Boddie v. City of Columbus, for example, we
    recognized    the   “reality     that   speech   in    the   context   of   union
    activity will seldom be personal; most often it will be political
           Although public employees in Texas may not strike or engage
    in collective bargaining, public employee unions may act
    collectively in the political arena, by raising awareness of
    employees’ complaints, increasing voter participation, and
    educating members politically. There is record evidence that CWA
    members have actively pursued these options, by staging a
    demonstration, attending an Ector County Hospital District (“ECHD”)
    Board meeting, filing grievance letters on behalf of CWA members,
    and, in the case of one member, running for a position on the ECHD
    speech.”27   Similarly, the D.C. Circuit has noted that “[t]he urge
    to unionize certainly falls within the category of expression that
    is ‘fairly considered as relating to any matter of political,
    social, or other concern to the community ...’”28 And, in Thornhill
    v. Alabama, the Supreme Court stated that “labor relations are not
    matters of mere local or private concern.”29   Although the Hospital
    cites case law indicating that publicizing a personal employment
    grievance is not speech on a matter of public concern,30 Herrera was
    not trying to publicize a personal employment grievance: Nothing in
    the record of this case would indicate that the “Union Yes” button
    was related to anything other than the ongoing organizing effort.
         In contrast, the cases relied on by the district court and
    cited on appeal by Plaintiffs support the conclusion that speech
    regarding general union activities is speech on a matter of public
    989 F.2d 745
    , 750 (5th Cir. 1993). This “political” view
    of Herrera’s speech is particularly appropriate in the instant
    case, as CWA has engaged in political activities on behalf of
    Hospital employees. See note 25, supra.
            American Postal Workers Union, AFL-CIO v. United States
    Postal Serv., 
    830 F.2d 294
    , 301 (D.C. Cir. 1987) (quoting Connick
    v. Myers, 
    461 U.S. 138
    , 146 (1983)); see also McGill v. Bd. of
    602 F.2d 774
    , 778 (7th Cir. 1979)(“her complaint alleges
    that the reason for her transfer was advocacy of a collective
    bargaining agreement ... Judge Morgan evidently concluded that this
    speech involved a matter of public concern, and we agree.”).
    310 U.S. 88
    , 103 (1940).
           See, e.g., Teague v. City of Flower Mound, 
    179 F.3d 377
    , 383
    (5th Cir. 1999)(“During all relevant events, Teague and Burkett
    were acting in their capacity as employees embroiled in an
    employment dispute.   Their focus ... was primarily on clearing
    their names, not on rooting out police corruption per se.”).
    concern.31     We easily conclude that Herrera’s wearing of the union
    lapel pin is appropriately classified as speech regarding general
    union activities, not speech publicizing a personal employment
    grievance, and is therefore speech on a matter of public concern.
           The Hospital attempts to make a corresponding argument that
    the speech at issue here (“Union Yes”) did not sufficiently inform
    the public as to be helpful, so that even if the subject of the
    speech is of public interest, the content of this particular
    communication renders it unprotected.32             The Hospital also contends
    that    Herrera’s      limited    contact    with    the   public       supports      its
    argument on this point.          We disagree on both contentions.               The very
    fact that a union organizing drive was occurring at the Hospital is
    particularized         information    about     which      the        public    may    be
    interested,      and    that     information,   as    well       as    the     viewpoint
    championed by those who wear the button, is adequately conveyed by
    the words “Union Yes.”           As for Herrera’s limited contact with the
    public, we have held that speech on a matter of public concern can
    be protected, even if that speech occurs only in the workplace.33
                See note 27, supra, and accompanying text.
           See Wilson v. City of Littleton, 
    732 F.2d 765
    , 768 (10th
    Cir. 1984)(discussing Connick v. Myers, 
    461 U.S. 138
           See Branton v. City of Dallas, 
    272 F.3d 730
    , 740 (5th Cir.
    2001). In Branton, however, the employee at issue had a duty to
    report false testimony of other police officers (the subject of the
    speech at issue), which fact clearly influenced the court’s
    analysis: “Although Branton’s speech occurred at work, ... Branton
    had not only an invitation but a duty to speak.” Id. However, the
    Branton panel also noted that “Neither the [First] Amendment itself
    Moreover, the Hospital undercuts its own argument by acknowledging
    that Herrera did come in contact with members of the public (albeit
    not in any interactive capacity), such as, for example, at the
    cafeteria, in the hallways, and on the stairs.34                     Ironically, in
    addressing       the   Pickering/Connick      balancing      test,    the    Hospital
    inconsistently         argues   that   Herrera   had   “frequent       and   direct”
    contact with the public.           Yet the Hospital conceded in its Trial
    Brief     that   Herrera’s      employment    “does    not   entail     significant
    interaction with the public” (emphasis added).35                     For non-spoken
    “speech” to be communicated, it is visibility by the public that
    satisfies; interaction is not required.
    3.   The Pickering/Connick balancing test.
    nor our decisions indicate that ... freedom [of speech] is lost to
    the public employee who arranges to communicate privately with his
    employer rather than to spread his views before the public.” Id.,
    quoting Givhan v. Western Line Consol. Sch. Dist., 
    439 U.S. 410
    415-16 (1979).
            Similarly, the dissent undercuts its own argument on this
    point and attempts to have it both ways. The dissent argues that
    assuming that the speech here is on a matter of public concern, “it
    is so only in a very weak and attenuated sense” because “it
    addresses no specific matter.” In its discussion of the employer’s
    right to project “an appearance to the public of neutrality and
    impartiality,” however, the dissent relies heavily on the message
    of the button, noting that “any reasonable patient, visitor, or
    other member of the public, and any reasonable co-employee, will
    understand the button with the written message on it as an attempt
    by its wearer to communicate the content of the message . . . That,
    of course, is the point of the button.” If the button’s message
    addresses “no specific matter,” there is truly no concern that it
    would compromise the Hospital’s neutral and impartial image.
              See note 43, infra, and accompanying text.
         The thrust of the Hospital’s argument on this second step of
    our test is that the dress code policy is “entitled to deference”
    because it is “critical to the Hospital’s mission in that it
    creates an appearance of impartiality and promotes uniformity,
    discipline, and esprit de corps among the hospital’s employees.”36
    Although the Hospital lifts this argument almost verbatim from this
    circuit’s precedent on non-adornment policies similar to the one
    here at issue, that precedent deals in large part with public
    employers that are law enforcement agencies or other “paramilitary”
           Paraphrasing almost verbatim our opinion in United States
    Dep’t of Justice v. Federal Labor Relations Authority, another law
    enforcement case discussed infra at notes 37-40 and accompanying
         The dissent misconstrues the action before us, and, as a
    result, relies heavily on cases that are procedurally inapposite to
    the suit here. The dissent argues that the matter before us
    concerns the constitutionality or unconstitutionality of the
    Hospital’s dress code. This, however, misses the mark. What is
    before us is a Section 1983 damages action that attacks the
    constitutionality of the dress code as it applies to Herrera’s (and
    other similarly situated employees’) speech.         The dissent’s
    reliance on United States Civil Service Commission v. National
    Association of Letter Carrriers AFL-CIO, 
    413 U.S. 548
     (1973), and
    Broadrick v. Oklahoma, 
    413 U.S. 601
     (1973), is thus misplaced. In
    both cases, the plaintiffs challenged the constitutionality of the
    federal and state statutes as unconstitutional on their face,
    including overbreadth and vagueness challenges. That is not the
    issue before us. Indeed, in Broadrick, the Court noted that the
    plaintiffs argued that the Oklahoma statute in question applied to
    protected political expression such as the wearing of political
    buttons.   413 U.S. at 608.    The Court rejected this argument,
    noting (1) that plaintiffs had not engaged in that type of
    activity, and (2) that plaintiffs could not invoke the overbreadth
    doctrine “on the ground that it may conceivably be applied
    unconstitutionally to others, in other situations not before the
    Court.” Id. at 609-10. Thus, because plaintiffs had not engaged in
    the wearing of political buttons, they could not assert that the
    challenged statutes encompassed such activity. See id. at 610.
    organizations.     Thus, that precedent is inapposite and provides
    scant —— if any —— support for the Hospital’s argument.
         In Daniels v. City of Arlington,37 for example, we explained
         [T]he city ... 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.38
    This reasoning rests almost entirely on the key fact that a police
    force, as the only arm of municipal government that is authorized
    to use force on citizens, must avoid any appearance of favoritism
    or bias and —— just as important —— any signal that might cause
    confusion as to who is and who is not a law enforcement officer.
    This reasoning was also the foundation of a case cited by the
    Daniels panel (and misguidedly cited by the Hospital here), U.S.
    Department of Justice, Immigration and Naturalization Service v.
    Federal Labor Relations Authority.39      There, we explained that “the
    border patrol .... is a para-military law enforcement unit, and as
    such, has many of the same interests as the military in regulating
    246 F.3d 500
     (5th Cir. 2001).
           Id. at 504. The Daniels panel had already determined that
    the speech at issue there —— a Christian cross worn on the lapel ——
    was not speech on a matter of public concern and was therefore not
    protected by the First Amendment, so this language is essentially
    955 F.2d 998
     (5th Cir. 1992).
    its employees’ uniforms.”40          Because of this similarity of mission
    and means between the military and the INS, our FLRA panel held
    that the border patrol’s anti-adornment policy was “similarly
    entitled to deference.”41
          This reasoning simply does not apply to the instant situation,
    despite the Hospital’s close emulation of the language from FLRA in
    an apparent effort to bolster its claim that its dress code policy
    is entitled to such deference.           The paramilitary reasoning of our
    FLRA opinion cannot be stretched to apply to the non-medical, non-
    administrative,        maintenance     and    clerical     staff    of   a   public
    hospital.        The wearing of a pin by a carpenter and other Integrated
    Services employees, who are merely seen by, but do not interact
    extensively with, members of the public, cannot be seriously said
    to   undermine       (1)    the   public’s    perception    of     neutrality   and
    impartiality        among     the   Hospital’s     professional       and    quasi-
    professional medical and administrative staff, or (2) the esprit de
    corps among these kinds of employees.42             As Plaintiffs accurately
               Id. at 1004 (emphasis added).
            The “esprit de corps”/unity argument rings especially hollow
    when viewed in light of the Hospital’s policy of permitting fans of
    two local high school football teams (Odessa and Permian Basin) to
    wear adornments supporting the schools at the time of their annual
    football showdown.     This rivalry is famously intense (see H.G.
    BISSENGER, FRIDAY NIGHT LIGHTS (1990)), and pins supporting or
    denigrating either of the two teams would seem to be just as if not
    more divisive than a “Union Yes” button. Indeed, this smacks of
    impermissible selectivity based on the content of the speech in
    note, this case lacks the unique circumstances and requirements of
    para-military and law enforcement organizations.              Even though the
    Hospital’s carpenters, plumbers, janitors, and other maintenance
    staff are glimpsed from time to time by patients, family members,
    and visitors, they do not interact directly with them; neither are
    such employees ever called on to enforce or administer the health
    care laws of the state.            The Hospital’s efforts to obscure the
    clear line between these classes of employees by painting with too
    broad a brush is feckless.
         The other cases relied on by the Hospital are similarly
    distinguishable, and equally inapposite.            In Smith v. U.S.,43 for
    example, we found no constitutional violation when a psychologist
    at a Veteran’s Administration hospital was discharged after he
    refused to remove a pin depicting a dove (a ubiquitous peace or
    anti-war symbol) superimposed on an American flag.             That incident
    occurred at the close of the Vietnam War, and the case was decided
    on the basis of trial testimony that some of the Vietnam veterans
    who were being treated personally by the psychologist were quite
    likely    to   find    the   pin    upsetting,   which   in   turn   would    be
    detrimental to such patients’ welfare.44            This is a circumstance
    unique    to   the    treating     psychologist/patient   relationship       and
    obviously cannot be analogized to apply to a carpenter who has no
    502 F.2d 512
     (5th Cir. 1974).
              Id. at 517-18.
    meaningful contact with patients or their families.               Again, the
    bright line between medical staff and blue collar maintenance
    employees cannot be crossed.
         Undaunted, the Hospital nevertheless contends that “Herrera
    had frequent and direct contact with the public,” and furthermore
    that if we were to accept that he did not have such contact, then
    his speech could not have been on a matter of public concern.              In
    so doing, the Hospital attempts to manufacture a Catch-22 for the
    Plaintiffs by arguing that they are “attempting to have it both
    ways” by arguing that Herrera had enough public contact to make his
    speech on a matter of “public concern,” but not enough public
    contact for purposes of the Pickering/Connick balancing test.              On
    the contrary, it is obviously the Hospital that is trying to have
    it both ways.   In its argument on the “public concern” element, the
    Hospital   contends   that   “Herrera   admits   he   did   not    have   any
    significant contact with the public” (emphasis added); a point
    actually conceded by the Hospital in its original Answer when it
    admitted that Herrera’s “position of employment with Defendant
    Hospital does not entail significant interaction with the public”
    (emphasis added). As shall be seen, the difference between contact
    and interaction is telling.      The district court declined to give
    conclusive effect to that admission because all the parties “seemed
    to have overlooked [it]” in their arguments before that court,45
           CWA II, 
    241 F. Supp. 2d 617
    , 626 (W. D. Tex. 2002). The
    district court based this decision on White v. ARCO/Polymers, Inc.,
    which      nevertheless     observed      that    the    admission     was     “highly
    indicative of the Defendants’ stance on this issue before it became
    critical to the case.”46           The definitive aspect of the Hospital’s
    schizophrenic       posturing      here   is     its    conflating    of     two   very
    different aspects of Herrera’s presence, vis-à-vis the public: (1)
    “contact” that is passive visibility that facilitates “speech”, and
    (2) direct “interaction” which, if present, might affect the
    public’s perception of his employer’s neutrality.
          In    stark   contrast       to   the    Hospital’s    flawed        comparison,
    Plaintiffs’      position     is    neither      inconsistent    nor        internally
    contradictory.       They accurately assert that “Herrera’s position
    does not entail significant interaction with the public. ...
    [Herrera] worked in patient rooms that had been vacated for repairs
    or   renovation.     ...    [Herrera]      only    encountered       the    public   in
    passing, such as brief encounters in the hallways, elevators, or
    cafeteria” (emphasis added).            Such contacts, however fleeting, are
    quite sufficient for Herrera’s lapel pin to alert the public to the
    fact that a labor organizing drive is ongoing, but fall well short
    of the active, functional interaction (such as that between law
    enforcement officers and the public or psychiatrists and their
    patients) needed to affect negatively the Hospital’s medical or
    720 F.2d 1391
    , 1396 (5th Cir. 1983), which states that “fail[ure]
    to contend that [a party’s] admissions barred []subsequent
    assertion of the contrary position ... effectively waived the
    argument that the issue was irreversibly settled.”
               CWA II, 241 F. Supp. 2d at 626.
    administrative        operations.        Passive     visibility       and    active
    interaction     weigh    quite    differently      on    the    Pickering/Connick
    balancing     beam.     The   nature     of   Herrera’s       performance    of   his
    employment as a carpenter, with the frequency of its visibility and
    the infrequency of its interaction with the public, is such that
    the Hospital has failed to demonstrate how suppressing the lapel-
    pin   speech    of    personnel   like    Herrera       was    necessary    for   the
    efficient providing of Hospital services.
          The Hospital also argues that Herrera’s speech had the effect
    of workplace disruption, which is a factor to be considered in
    conducting the balancing test.            The Hospital would emphasize the
    anecdotal incident when Durham instructed Herrera to remove the
    button and Herrera responded with “If you want it off, then you
    take it off.”47       On this point, the district court ruled:
          Just as other courts have found that ‘refusing to obey an
          order that implicates an employee’s First Amendment
          rights is not a sufficient reason for disciplining the
          employee,’ this Court holds that an employer’s insistence
          upon enforcing an unconstitutional policy cannot create
          the very disruption the policy purports to prevent.48
    The district court also recognized that the button-wearing speech
    at issue here caused no workplace disruption, either in the Durham
           Appellant also briefly argues that this statement, as well
    as Herrera’s shouting “Union up” as he was escorted from the
    cafeteria, amount to an attempt by Herrera to elevate his personal
    employment matter into a “cause celebre.” This is unpersuasive
    because the button at issue here does not implicate any personal
    employment matter.
               CWA II, 241 F. Supp. 2d at 631.
    incident or on a prior occasion when approximately 30 Hospital
    employees wore the buttons.49                   Finally, as the district court
    observed,       there    was        no    evidence   that     Herrera’s    productivity
    suffered as a result of wearing the button; quite to the contrary,
    he received consistently positive performance evaluations, with the
    lone exception of the dress code violation.50
         The instant situation differs markedly from, for example,
    Connick    v.    Myers,        in    which    the    speech   at   issue    involved    an
    assistant district attorney’s distribution during work hours of a
    questionnaire           that        was     critical     of     that   professional’s
    supervisors.51 Here, as emphasized by the district court, Herrera’s
    mute lapel-pin speech was not a public criticism of a close
    supervisor or a challenge to the Hospital’s authority; neither did
    it pose any threat whatsoever to the efficient performing of the
    Hospital’s medical or administrative functions.52                      Obviously, the
    particular work environment in Connick was a key factor.                               The
    Supreme Court emphasized that maintaining harmonious relationships
    is essential to efficiency in a district attorney’s office, which
    is, after all, tantamount to a government law firm.                       A custodial or
              See CWA I, 
    241 F. Supp. 2d 601
    , 613 (E.D. La. 2002).
              See Id.; CWA II, 241 F. Supp. 2d at 630-31.
    461 U.S. 138
    , 153 (1983).
           CWA II, 241 F. Supp. 2d at 631.       As the district court
    explained, these are all types of speech that have been permissibly
    infringed by public employers under the Pickering/Connick test, but
    Herrera’s speech falls into none of these categories.
    maintenance worker, such as a carpenter, wearing a pro-union button
    during his work shift cannot be analogized to a doctor, nurse,
    technician, or administrator employed by a medical center, just as
    such a maintenance worker cannot be analogized to an assistant
    district attorney or deputy sheriff.   In sum, Herrera’s speech on
    a matter of public concern outweighs any effect it might have on
    the Hospital’s providing services to the public.     Herrera passes
    the Pickering/Connick balancing test with flying colors.
    4.   Speech as a substantial or motivating factor.
         This brings us to the third step in our testing.       On the
    question whether Herrera’s speech was a motivating factor for his
    punishment, the district court emphasized that the Hospital had
    essentially conceded this point in its Trial Brief when it stated:
    “If Plaintiff Herrera had removed the button from his uniform on
    any of the numerous occasions he was asked to do so by his
    supervisors, he would not have been disciplined.”53    Furthermore,
    noted the district court, other circuits have concluded that
    “refusing to obey an order that implicates an employee’s First
    Amendment rights is not a sufficient reason for disciplining the
           See CWA II, 241 F. Supp. 2d at 627. The court also observed
    that, even though the Hospital would say that quotation is out of
    context, that it was meant to demonstrate that Herrera was punished
    for insubordination, the statement is nonetheless “an unequivocal
    admission” that the button was a “substantial motivating factor” in
    the adverse employment action.
    employee.”54     And, the lack of disciplinary action meted out to
    employees who knuckled under and removed their buttons demonstrates
    beyond cavil that the continued wearing of the button in violation
    of the dress code was at least a motivating factor behind Herrera’s
    discipline, notwithstanding the Hospital’s strenuous contentions to
    the contrary.          After   all,    the    only   employee   disciplined   was
    Herrera, who was the only employee who continued to wear the
          But even if we concede arguendo that insubordination too was
    “a” cause of the adverse employment action (which we address more
    fully below), none can contend, at least not in full candor, that
    insubordination was the sole reason.                  Stated differently, the
    record evidence establishes beyond peradventure that Herrera’s
    protected speech was also a (if not the) motivating factor.
    5.    Would the adverse employment action have been taken absent
          Herrera’s protected speech?
          Independently, Herrera’s employment file provides the answer
    to   the    question    whether   he    would    have   suffered   the   adverse
    employment action but for the protected speech.                  His employment
    record contains no negative marks, comments, or references to any
           CWA I, 241 F. Supp. at 614. (quoting Dunn v. Carroll, 
    40 F.3d 287
    , 291 (8th Cir. 1994), accord Leonard v. City of Columbus,
    705 F.2d 1299
    , 1305 (11th Cir. 1983).
           The confrontation with Durham, occurring as it did after
    repeated unconstitutional commands to remove the button, does not
    negate the importance of the button in motivating the adverse
    employment decision, a point we discuss further infra.
    other incidents of misconduct whatsoever.     And, even though that
    record on its face indicates that Herrera was disciplined for
    “insubordination,” it goes on to make abundantly clear that the
    insubordination for which he was punished arose from Durham’s
    thrice-repeated, unconstitutional order to correct a dress code
    violation.56   The record even notes the dress code’s policy number.
    Under these circumstances, it is specious at least —— mendacious at
    most —— for the Hospital to contend “that it would have reached the
    same [employment] decision ... in the absence of the protected
            It is important to note that the confrontation in the
    cafeteria had not escalated to the point at which an altercation
    might have occurred. Herrera’s coworker, Gerardo Medrano —— the
    only disinterested witness, as he was no longer employed by the
    Hospital by the time of the trial —— testified first that Herrera
    was not angry during the confrontation. After prodding by defense
    counsel, he conceded that Herrera was “kind of” angry, but on
    cross-examination Medrano made clear that any tension involved in
    the confrontation was incited by Durham and another supervisor,
         Q: ... Wasn’t Mr. Berry’s question [from the deposition]
         “Okay. So, he was kind of angry?”
         A: Yes, sir.
         Q: And then Mr. Berry’s next question on line 15 was,
         “And he said that kind of in anger”. Did I read that
         A: Yes, sir.
         Q: All right. Now, who showed anger first in that little
         confrontation in the cafeteria? Who showed anger first?
         Mr. Durham or Mr. Herrera?
         A: John Durham and Mr. Daniels.
         Q: Okay. And who showed – Who seemed more angry? Mr.
         Durham or Mr. Herrera?
         A: John Durham and Tim Daniels.
         Q: Did they both seem more angry than Mr. Herrera?
         A: Yes, sir.
    conduct.”57       Like Poor Richard’s proverbial horse-shoe nail, if
    Herrera had not engaged in the protected speech, he would not have
    been ordered to cease; if he had not been so ordered repeatedly, he
    would     not    have    repeatedly       refused   to     cease;     if    he   had   not
    repeatedly (and increasingly emphatically) refused to cease, the
    charge of “insubordination” and the ensuing adverse employment
    decision    would       never    have     been   made.58       This   is    a    generous
    characterization,         as    the     claim    that    insubordination         was   the
    motivation for the disciplinary action has the distinct ring of
    provocation and post-hoc rationalization.
         The        Hospital’s      attempt    to    cast    its    adverse      action     as
    disciplining Herrera only for insubordination, which action would
    have been taken regardless of the protected speech, proves too
    much.     Under this theory, any public employer could stifle the
    First Amendment speech rights of employees with impunity.                          If an
    employer        wanted    to     stop      an    employee      from        engaging    in
    constitutionally protected speech (that is, speech on a matter of
           Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 
    429 U.S. 274
    , 287 (1977).
            The absurdity of the Hospital’s position on this question
    is illustrated by its Motion to Dismiss, in which it cannot keep
    its own story straight. On the one hand, the Hospital asserts that
    “Mr. Durham informed Plaintiff Herrera that if he violated the
    dress code policy again, he would be reprimanded.         Plaintiff
    Herrera stated that he understood the consequences of violating the
    dress code policy ....” (emphasis added).       Later in the same
    document, however, the Hospital argues that “It was not the alleged
    ‘speech’ or even his violation of the dress code policy that
    precipitated the disciplinary action.” (emphasis added).
    public concern that does not impede the employer’s efficient
    operation), it need only order the employee to cease.                      If the
    employee obeys, the employer has succeeded in quashing protected
    speech; if the employee refuses, he has been insubordinate and is
    subject to being fired or suspended, thus again stopping the
    protected speech.       This would be “win-win” for public employers
    interested in quashing protected speech, but it would be “lose-
    lose” for the First Amendment.
         Still    the    Hospital     protests   that    it     was   not   Herrera’s
    continued breach of the dress code and refusal to desist that
    constituted the insubordination; rather, it was his “fighting
    words” (“I’m not going to take it off.              If you want it off, then
    you take it off”) to Durham for which he was disciplined.                Not only
    does Herrera’s employment record put the lie to this pretextual
    explanation by referring to the dress code by policy number; the
    record facts eschew the Hospital’s attempt to portray the incident
    as some highly charged “belly bumping” altercation.                There was no
    indication    at    trial   that   Herrera   had     been    insubordinate     or
    disruptive in any way on the day of his suspension, other than in
    the brief, Durham-provoked confrontation. That episode clearly was
    incited    (or     exacerbated)    by   Durham   himself.59        Under    these
    circumstances, it is obvious that the adverse employment action
    would not have occurred “but for” the protected speech and the
              See note 54, supra.
    supervisor’s persistant, unconstitutional efforts to squelch that
    C.    Alleged Procedural Errors
    1.    Arguments insufficiently briefed.
           The Hospital contends on appeal that the district court failed
    to complete the Pickering/Connick balancing test analysis when
    considering the parties’ motions for summary judgment, and by
    shifting the burden of proof at trial, thereby committing error.
    The Hospital neither makes substantive arguments on these points
    nor    cites   relevant       case    law,    presenting       nothing      more    than
    unsupported     conclusional         statements.          As   we    have    long    and
    repeatedly held that issues inadequately briefed to us are deemed
    waived, we do not address these two arguments.60
    2.     Jury consideration of “factual” issues implicated in the
           constitutional test.
           As   noted   above,      we     find     unconvincing         the    Hospital’s
    substantive arguments that the protected speech at issue —— wearing
    the Union      button   and    refusing       to   take   it   off    ——    was    not a
    motivating factor of its adverse employment action against Herrera.
    As for the procedural question whether the district court rather
           Fed. R. App. P. 28(a)(9)(A) requires that the Appellant’s
    brief contain “appellant’s contentions and the reasons for them,
    with citations to the authorities and parts of the record on which
    the appellant relies.” See also L&A Contracting Co. v. Southern
    Concrete   Servs.,   Inc.,   
    17 F.3d 106
    ,   113   (5th   Cir.
    1994)(“[Appellant] cites no authority ... on the attorney fee
    question, however, and we consider the challenge abandoned for
    being inadequately briefed.”).
    than the jury was the proper party to decide the two “factual”
    questions, we agree with Plaintiffs that “it is without question
    that a district court may on a motion for summary judgment rule as
    a matter of law that the summary-judgment evidence demonstrates
    that no genuine issue of material fact exists for trial as to an
    element essential to the non-moving party’s case.”61              Furthermore,
    according     to    the   district   court’s   analysis   of   the   case,   the
    Hospital had “nowhere indicated that evidence [it] would have
    offered on these issues at trial would in any material way have
    differed     from    that    which   had    already   been     considered    and
    rejected.”62 Instead, the Hospital continued to insist that Herrera
    was not disciplined for his dress code violation.               Although it is
    true that these factual questions would normally be for the jury to
    decide, the district court’s actions here are not error in light of
    the summary judgment evidence on causation.63
    D.   Injunctive Relief
            CWA II, 
    241 F. Supp. 2d 617
    , 627 (W.D. Tex. 2002), citing
    Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 322-
    23 (1986).
               CWA II, 241 F. Supp. 2d at 627.
            The Hospital also insists that the district court should
    have ordered a full trial on the merits, instead of limiting the
    jury trial    to   the  remaining   undecided   elements   of  the
    Pickering/Connick balancing test. The Hospital again neither makes
    substantive arguments on this point nor cites relevant case law.
    Thus this argument, if not waived as inadequately briefed, appears
    frivolous, given the function of the court at the summary judgment
    stage. See notes 58-59, supra, and accompanying text.
         The district court concluded that, because the Hospital had
    failed, under the Pickering/Connick balancing test, to justify the
    restrictiveness of the dress code, injunctive relief was necessary
    to   prevent    the     Hospital’s   future    application   of    the   same
    unconstitutional policy to other employees situated similarly to
    Herrera. Plaintiffs had originally sought an injunction that would
    allow all the Hospital’s employees to wear pro-union buttons.64 The
    district court decided that this would be overbroad, but satisfied
    itself that a more narrowly tailored injunction covering only those
    employees who worked in conditions similar to Herrera, i.e., those
    who work in the Hospital’s “Integrated Services” sector and have
    limited contact and virtually no interaction with the general
    public, would be appropriate.           The district court reasoned quite
    logically that, as the Hospital has continuously asserted that the
    wearing of the button and refusal to obey orders to doff it “in no
    way led to the disciplining of Herrera,” it “essentially concede[d]
    that the message of the button is harmless and does not cause a
         This was not an abuse of discretion.           If the Hospital cannot
    bar Herrera from wearing the button, neither can it bar similarly
    situated employees       from   doing    so.   An   injunction    limited   to
    prohibiting the Hospital from enforcing the anti-adornment policy
              CWA II, 241 F. Supp. 2d at 634.
              Id. at 635.
    against Herrera alone would have the potential of inviting more
    litigation and squandering more judicial resources.                          As Plaintiffs
    point out, this is especially true in light of the Hospital’s
    demonstrated “belligerence” in this case and its dogged refusal to
    accept (or even address) many of the district court’s rulings.                               We
    perceive no reversible error in the injunction ruling of the
    district court as finally tailored.
    E.   Attorneys Fees and Costs
          The    Hospital        urges      that   the       district     court    abused      its
    discretion in awarding fees and costs “because [Plaintiffs’] free
    speech rights were not violated.”                   But, as we have concluded that
    Herrera’s      rights        were    violated,           this    argument      is    plainly
    unavailing.         As   a    fall-back        position,        however,      the   Hospital
    contends that even if the Plaintiffs are entitled to attorneys’
    fees, the quantum of the district court’s award of fees and costs
    is   not    supported        by   sufficient        or    credible     evidence.           This
    impresses us as being particularly inaccurate when considered in
    the context of the district court’s extensive discussion of how its
    award was calculated.66             Furthermore, as that court noted, many of
    these      costs    could     have      been    avoided         had   the    Hospital       not
    steadfastly        continued      its    “adamant        refusal      to    deal    with   the
    rulings” of the trial court, a litigating posture that the court
               See CWA II, 241 F. Supp. 2d at 635-38.
    labeled “a ‘fight to the last breath’ strategy.”67         The court
    further explained:
         Although the attorneys for Defendants were absolutely
         certain that both judges in this action were completely
         wrong in their analysis of the issues, it must be
         observed that, even when lawyers disagree with judges,
         they normally humor judges enough to address the issues
         that the judges believe to be important in the matter.
         Counsel need not adopt a judge’s view of a case, but they
         should, at a minimum, confront it. While declining to do
         so, as here, illustrates abundant self-confidence, it
         also elongates a case and adds greatly to its cost ....68
         This same scorched-earth strategy pervades the Hospital’s
    appeal.     It has challenged virtually every factual finding and
    every legal conclusion made by the district court, no matter how
    slight or relatively insignificant.     Although this strategy may be
    warranted on rare occasions, in the instant case many of the
    Hospital’s arguments border on the frivolous, and others are
    insufficiently briefed.    The Hospital’s “kitchen sink” briefing in
    this case was ill-advised.    Although we refrain from finding this
    appeal frivolous under Federal Rule of Appellate Procedure 38, as
    requested by Plaintiffs, we are well satisfied that the Hospital’s
    conduct in this matter and Plaintiffs’ supporting documentation
    provide ample support for the district court’s extensive analysis
    and ultimate amount assessed for attorneys’ fees.      We discern no
    abuse of discretion, and thus no reversible error.
                               III.   Conclusion
              CWA II, 241 F. Supp. 2d at 635.
         The    infringement         on     Herrera’s      rights    in     this    case   was
    inflicted pursuant to an official Hospital policy.                             Given its
    content and its context, i.e., during the course of an ongoing
    union organization effort, Herrera’s wearing of the lapel pin was
    speech   on    a   matter    of       public       concern.      And,    although      the
    Pickering/Connick balancing test allows public employers to ban
    inflammatory or disruptive speech in legitimate efforts to ensure
    the efficient delivery of services, the Hospital has not produced
    any probative evidence demonstrating that the wearing of a “Union
    Yes” button by a carpenter or other member of the Integrated
    Services subset of its employees is the kind of speech that has
    produced, or is likely to produce, such deleterious effects.
    Finally, we see the Hospital’s dogged insistence that Herrera was
    disciplined solely for insubordination —— and not at least in
    significant part for a dress code violation —— to be contrived and
    disingenuous sophistry at best, and mendacious at worst.                                We
    likewise      conclude   that         the    Hospital’s       complaints       about   the
    procedural     rulings      of    the       district   court     and    its    award    of
    attorneys’ fees are without merit, in no way approaching the level
    of abuses of discretion.              For the foregoing reasons, the district
    court’s judgment is, in all respects,
    GARWOOD, Circuit Judge, dissenting.
          I respectfully dissent.
          As always, we must properly understand what is, and what is
    not, before us.      What is before us is a combined partial summary
    judgment and a judgment as a matter of law holding unconstitutional
    a   local    government’s       nondiscriminatorily      applied   content   and
    viewpoint neutral uniform non-adornment policy applicable to its
    employees while on duty.69              What is not before us is whether a
    governmental employer may discipline an employee for advocacy of
    better working conditions, cf. McGill v. Board of Education, 
    602 F.2d 774
    , 778 (7th Cir. 1979) (“advocacy of a collective bargaining
    agreement in the teachers’ lounge and in an open meeting of the
    school board”), or for belonging to a union, or because a union was
    the subject matter addressed by the adornment the employee wore on
    his uniform at work or because the viewpoint expressed thereby was
          It    is   clear   that    with    respect   to   restrictions   on   First
    Amendment rights “the government as employer indeed has far broader
    powers than does the government as sovereign” and “even many of the
          Under the hospital’s policy, all employees were required to
    wear a uniform while on duty. The required uniform for carpenters
    (such as Herrera), electricians, cabinet-makers and plumbers,
    consists of a gray shirt and gray pants. The policy provides that
    “ONLY pins representing the professional association and the most
    current hospital service award may be worn.” It is also provided
    that the dress code will be enforced “uniformly throughout Medical
    Center Hospital.”
    most fundamental maxims of our First Amendment jurisprudence cannot
    reasonably be applied to speech by government employees.”     Waters
    v. Churchill, 
    114 S. Ct. 1878
    , 1886 (1994).       “On the other hand,
    ‘the threat of dismissal from public employment is . . . a potent
    means of inhibiting speech,’” (quoting Pickering v. Board of
    88 S. Ct. 1731
    , 1737 (1968)), and a “balancing” is thus
    called for “to accommodate the dual role of the public employer.”
    Rankin v. McPherson, 
    107 S. Ct. 2891
    , 2897 (1987).        This is so
    because it “is necessary to ensure that public employers do not use
    authority over employees to silence discourse, not because it
    hampers public functions but simply because superiors disagree with
    the content of employees’ speech.”    Id. (emphasis added).     That
    concern is not implicated here, but it has been present throughout
    the Supreme Court’s Pickering line of cases.70    This likewise true
          See, e.g., Pickering v. Board of Education, 
    88 S. Ct. 1731
    1732-33 (1988) (teacher’s letter to newspaper criticizing Board of
    Education’s school finance proposal); Perry v. Sindermann, 
    92 S. Ct. 2694
    , 2696 (1972) (college teacher’s legislative testimony
    supporting position opposed by college’s board of regents); Mt.
    Healthy City Board of Ed. v. Doyle, 
    97 S. Ct. 568
    , 573
    (1977)(teacher’s telephone call to radio station conveying
    substance of memorandum relating to teachers’ dress and appearance
    and “his criticism”); Givhan v. Western Line Consolidated School
    99 S. Ct. 693
    , 695 (1979) (teacher’s criticism to principal
    of school district’s racially discriminatory policies and
    practices); Connick v. Myers, 
    103 S. Ct. 1684
    , 1693 (1983)
    (assistant district attorney’s questionnaire circulated in office
    which impliedly criticized district attorney and supervisors);
    Rankin v. McPherson, 
    107 S. Ct. 2891
    , 2900 (1987) (“it is undisputed
    that he fired McPherson based on the content of her speech”). See
    also Waters v. Churchill, 
    114 S. Ct. 1878
    , 1884 (1994) (nurse’s
    criticism of employer hospital’s violation of state nursing
    with respect to this court’s decisions applying Pickering and its
          When,    however,     the   governmental    employer’s      regulation   of
    employee       First      Amendment      protected         expression     is   by
    nondiscriminatory and content/viewpoint neutral general regulation,
    the balancing process is far more heavily tilted in favor of the
    government even where the First Amendment protected activity is of
    the kind most clearly and strongly a matter of public concern.
    That is evident in the Supreme Court’s decisions upholding the
    Hatch   Act,    restricting       a   broad   range   of    partisan    political
    activities of all federal civil service employees, and its Oklahoma
    analog applicable to all that state’s civil service employees.
    United States Civil Service Commission v. National Association of
    Letter Carriers, 
    93 S. Ct. 2880
     (1973); Broadrick v. Oklahoma, 
    93 S. Ct. 2908
     (1973).        In Broadrick the Court observed that “[u]nder
    the decision in Letter Carriers there is no question that . . .
    [the Oklahoma statute] is valid at least insofar as it forbids
    classified employees from [inter alia] . . . addressing or taking
    an   active    part    in   partisan     political    rallies     or    meetings;
    soliciting votes . . .; participating in the distribution of
    partisan campaign literature; . . . circulating partisan nominating
    petitions . . . .”           Broadrick, 93 S.Ct. at 2918.               The Court
    obviously recognized that these statutes restricted First Amendment
    regulations and the quality of nursing care provided patients).
    protected freedom of speech directly on and closely involving
    matters which could not be more clearly of the very strongest
    public concern.71   Indeed, few if any matters can be of more public
    concern than elections, or more closely and directly related
    thereto than addressing a political rally, soliciting votes, or
    distributing   campaign   literature.     Nevertheless,   the   Court
    sustained those statutes and did so even though they extended to
    the lowest level civil service employees, without regard to whether
    their government positions involved any policy making or discretion
    or any contact or interaction with the public, or whether while
    engaging in the proscribed expression the employee was identified
    (or likely to be known) as a government employee, or whether while
    so engaged the employee was on duty or on any government property,
    and without regard to whether the election in question was one to
          See Broadrick, 93 S.Ct. at 2918 (the state statute “is
    directed, by its terms, at political expression which if engaged in
    by private persons would plainly be protected by the First and
    Fourteenth Amendments”); Kelley v. Johnson, 
    96 S. Ct. 1440
    , 1445
    (1976) (“we    have   sustained   comprehensive   and   substantial
    restrictions upon activities of both federal and state employees
    lying at the core of the First Amendment,” citing Letter Carriers
    and Broadrick; emphasis added).
    a federal office (in Letter Carriers).72 In so holding, the Supreme
    Court stressed that:
         “The restrictions . . . imposed on federal employees are
         not aimed at particular parties, groups, or points of
         view, but apply equally to all partisan activities of the
         type described.    They discriminate against no racial,
         ethnic, or religious minorities. Nor do they seek to
         control political opinions or beliefs, or to interfere
         with or influence anyone’s vote at the polls.”73
         I am willing to assume, arguendo, that the wearing of the
    “Union Yes” button was speech on a matter of public concern.     But
    if that is so, it is so only in a very weak and attenuated sense.
    The “speech” only occurs only during the course of employment and
    not in anything considered a public forum, and it addresses no
          In Wachsman v. City of Dallas, 
    704 F.2d 160
    , 171 (5th Cir.
    1983), we noted that “[v]irtually all the numerous restrictions on
    federal employee political activity upheld in Letter Carriers . .
    . apply as much to strictly state and local elections and political
    affairs as to elections for federal office and political activities
    attendant thereto.”
         Wachsman likewise held that the rationale of Letter Carriers
    and Broadrick applied to non-partisan candidate elections and to
    employee contributions. Wachsman, 704 F.2d at 164-75. The city
    ordinance challenged in Wachsman also involved, among other
    provisions, a prohibition against any city employee wearing “city
    council campaign buttons . . . at work or in a city uniform or in
    the offices or buildings of the City;” the City employees
    challenging the ordinance did not, however, challenge that
    provision. Wachsman, 704 F.2d at 162. See also, e.g., Bart v. Tel
    677 F.2d 622
    , 624 (7th Cir. 1982) (no first amendment
    violation to require employee to take leave of absence before
    running for city office where not aimed at particular groups,
    parties or points of view).
          Letter Carriers, 93 S.Ct. at 2890. See also Broadrich, 93
    S.Ct. at 2918 (the challenged act “is not a censorial statute,
    directed at particular groups or viewpoints . . . The statute,
    rather, seeks to regulate political activity in an even-handed and
    neutral manner”).
    specific matter.   It certainly does not even impliedly address any
    corruption, violation of law, misconduct or malfeasance on the part
    of the hospital or any one else.      Nor does it even impliedly
    address any potential employee election to choose the union as
    bargaining representative for any of the hospital employees, or any
    potential “recognition” of the union by the hospital, or any
    potential contract between the employees and the hospital or any
    potential strike or organized work stoppage by such employees.74
          Under Texas Government Code § 617.002, “a political
    subdivision . . . may not enter into a collective bargaining
    agreement with a labor organization regarding wages, hours, or
    conditions of employment of public employees” and “a political
    subdivision . . . may not recognize a labor organization as the
    bargaining agent for a group of public employees.”         Id. (b).
    “Public employees may not strike or engage in an organized work
    stoppage.” Id. § 617.003(a). Further, “[a]n individual may not be
    denied public employment because of the individual’s membership or
    non membership in a labor organization.” Id. § 617.004.
         The foregoing provisions of Texas law do “not impair the right
    of public employees to present grievances . . . either individually
    or through a representative.” Id. § 617.005. “Representative” as
    used in the statute is not restricted to unions or union members
    but includes persons who are neither. Sayre v. Mullins, 
    681 S.W.2d 25
     (Tex. 1984). As we explained in Moreau v. Klevenhagen, 
    956 F.2d 516
    , 520 (5th Cir. 1992), aff’d, 
    113 S. Ct. 1905
    , 1909 n.10 (1993):
         “Presentation of grievances is acceptable under Texas law
         because it is a unilateral procedure under which the
         employee can be represented by anyone he or she chooses,
         be it a lawyer, clergyman, union or some other person or
         organization.     Texas law prohibits any bilateral
         agreement between a city and a bargaining agent, whether
         the agreement is labeled a collective bargaining
         agreement or something else. Under Texas law, the County
         could not enter into any agreement with the Union.”
         This is largely in contrast to the situation of Federal
    agencies and their employees governed by the Federal Service-Labor
    Management Relations Statute, 5 U.S.C. §§ 7101-7135, under which
    unions that have won an election supervised by the Federal Labor
    Relations Authority are certified as the exclusive bargaining agent
    While the “Union Yes” button may implicitly express the view that
    the hospital employee wearing it believes working conditions and/or
    compensation there would be better for him or her, and perhaps
    similarly situated fellow employees, if more hospital employees
    were union members, it is less than clear what, if anything, else
    is implied. It is the purest speculation to suggest anything more.
    In determining whether speech is as a matter of public concern we
    look to the “speech” allegedly giving rise to the complained of
    action by the governmental employee, not some other speech.     See,
    e.g., Waters, 114 S.Ct. at 1891.      Not everything that concerns
    discipline or morale in a governmental office is of public concern,
    and “the First Amendment does not require a public office to be run
    as a roundtable for employee complaints over internal office
    affairs.”   Connick, 103 S.Ct. at 1691.   As we have frequently held,
    “[c]ommunication thus rises to the level of public concern if a
    person speaks primarily as a citizen rather than as an employee.”
    Dorsett v. Board of Trustees For State Colleges, 
    940 F.2d 121
    , 124
    (5th Cir. 1991) (emphasis added). As noted, if Herrera’s violation
    of the uniform anti-adornment policy meets this test, it does so
    only minimally.    In such a situation the government’s burden in
    of the employees and the agency is under a duty to bargain
    collectively with the union (subject to certain reserved management
    rights).   See, e.g., 5 U.S.C. §§ 7111, 7114, 7116.        However,
    strikes and work stoppages are prohibited. § 7116(b)(7).        The
    contrast is, of course, even greater with respect to unions and
    employers governed by the National Labor Relations Act.
    justifying its action is correspondingly reduced, as we explained
    in Department of Justice v. FLRA, 
    955 F.2d 998
    , 1006 (5th Cir.
    1992) (“FLRA”):
          “‘[T]he State’s burden in justifying a particular [action
          or policy] varies depending upon the nature of the
          employee’s expression.’    Connick [v. Myers], 461 U.S.
          [138] at 150, 103 S.Ct. at 1692 [1983].        ‘The more
          central a matter of public concern the speech [or
          association] at issue, the stronger the employer’s
          showing of counter-balancing governmental interest must
          be.’ Coughlin [v. Lee], 946 F.2d [152] at 1157 [5th Cir.
          Certainly   an      employer   has    a    legitimate     interest   in
    establishing a uniform policy for its on duty employees.                   We
    recognized such an interest in FLRA, supra, as well as in Daniels
    v. City of Arlington, 
    246 F.3d 500
    , 504 (5th Cir. 2000).               While
    those cases involved law enforcement personnel, we have never held
    that a content neutral uniform policy advances no legitimate
    interest of a non-law-enforcement public employer in promoting the
    efficiency   of   its   services.     A    “uniform   requirement    fosters
    discipline, promotes uniformity, encourages esprit de corps, and
    increases    readiness”    and   standardized     uniforms    encourage    the
    subordination of personal preferences and identities in favor of
    the   overall   group   mission.     INS    v.   Federal    Labor   Relations
    855 F.2d 1454
    , 1464 (9th Cir. 1988).            There is no reason
    to believe that a uniform policy will not have similar efficiency
    promoting effects in the non-law-enforcement context. Moreover, as
    observed in INS v. Federal Labor Relations Authority, supra,
           “To allow employees to adorn their uniforms with objects
           of their own choosing undermines the very purposes that
           uniforms serve.” Id. at 1464.
           . . .
           “. . . the management interest in requiring unadorned
           uniforms has been recognized in private sector cases as
           well. The Sixth Circuit has recognized that concerns
           over discipline and presenting a clean professional image
           justified a private employer in prohibiting its
           restaurant employees from wearing unauthorized union
           buttons on their official uniforms. Burger King v. NLRB,
    725 F.2d 1053
    , 1055 (6th Cir. 1984).       Similarly, in
           Harrah’s Club, we recognized that a private employer was
           justified in prohibiting its casino employees from
           wearing unauthorized union buttons on their official
           uniforms. See Harrah’s Club, 337 F.3d [177] at 178-79
           [9th Cir. 1964)]. Id. at 1465.
           We have recognized that “a union button” worn on duty “can be
    interpreted as a symbol of defiance of supervisors and as a split
    in solidarity among union and non-union” employees “which will have
    an [adverse] impact on mission, discipline and esprit de corps.”
    FLRA, 955 F.2d at 1007.         There is no reason to think that this is
    not equally true respecting hospital employees.                Moreover, our
    above quoted assumptions about the effects of uniform adornment in
    FLRA   were    made   despite   the   fact   that   the   employer   “has   not
    demonstrated with anecdotal evidence that these deleterious effects
    will in fact occur.”      Id.     We justified that by stating:
           “The Supreme Court, in Connick, held, however, that it is
           not necessary ‘for an employer to allow events to unfold
           to the extent that the disruption of the office and the
           destruction of the working relationship is manifest
           before taking action.’” FLRA at 1007 (quoting Connick,
           103 S.Ct. at 1692).
    Here, by contract, there is anecdotal evidence that the wearing of
    union buttons does give rise to strong and hostile workplace
    emotions and confrontations.          When told on a second occasion to
    take        off   his   button,   Herrera   “got   upset,”   became   “very
    disrespectful,” almost “hostile,” and replied to his supervisor
    that “if you want to take it off, you take it off” – a remark that
    any reasonable fact finder could easily conclude was an invitation
    to physical confrontation.          The supervisor wisely declined the
    invitation and testified that he then “offered him [Herrera] to
    just go to my office, then Mr. Herrera stood up and jabbed his fist
    in the air very defiantly and yelled ‘Union Up.’”                All this
    occurred in the hospital cafeteria, in the presence of other
    employees, visitors and patients.75
          The majority’s statement that “[i]t is important to note that
    the confrontation in the cafeteria had not escalated to the point
    at which an altercation might have occurred” (emphasis added), is
    nothing more than the purest appellate fact finding, as is its
    strained    characterization    of   the    witness   Medrano    as
    “disinterested.” Medrano, who likewise wore a “union yes” button,
    and had been a co-employee and co-union member with Herrera,
    testified he was “good friends” with Herrera, that he had visited
    in Herrera’s home and they were “such good friends” that he would
    consider Herrera “like a brother.” Moreover, portions of Medrano’s
    trial testimony were shown to be inconsistent with his deposition
    testimony in several respects.      For example, Medrano clearly
    testified that when Herrera said “I’m not going to take it off, you
    take it off” Herrera was not “angry.” Only when confronted with
    his contrary deposition testimony (in which he replied “Yes, sir”
    when asked, respecting the same statement, whether Herrera “said
    that in anger”), did Medrano back off and attempt another route to
    throw blame on the supervisors.
         Moreover, in FLRA we also relied on the fact that the uniform
    anti-adornment policy “results in only a minimal intrusion of the
    free speech rights of union employees” who “can continue to express
    their support for the union in myriad other ways unaffected by” it.
    Id. at 1007.      The same is equally true in the present case.
         There   is    also,   as   we   noted   in   FLRA,   the   governmental
    employer’s legitimate interest in projecting “an appearance to the
    public of neutrality and impartiality.”           Id. at 1007.    While this
    interest may well be at its strongest in the context of law
    enforcement personnel, it is certainly not categorically absent
    otherwise.   Certainly Hospital employees such as Herrera are seen
    – indeed regularly seen – by patients and visitors and other
    members of the public.      The cafeteria in which they eat and take
    their twice a day breaks are likewise used by patients, visitors
    and other members of the public; they ride with members of the
    public in the elevators, and pass them in the halls and on the
    stairs. There are some, albeit comparatively infrequent, occasions
    when they perform their work in then occupied patient rooms.             The
    majority stresses “the difference between contact and interaction.”
    There is a difference, but that does not mean that contact is not
    relevant, only that true interaction is likely more so.           After all,
    any reasonable patient, visitor, or other member of the public, and
    any reasonable co-employee, will understand the button with the
    written message on it as an attempt by its wearer to communicate
    the content of the message to those with whom he comes into contact
    (such as by riding with them in the elevator or passing them in the
    halls or sitting at the cafeteria table next to them) not simply,
    or even primarily, those with whom he interacts.        That, of course,
    is the point of the button.      These buttons are wholly unlike what
    the speaker believes to be only a private conversation with a close
    friend, as in Rankin.         How are patients or visitors (or co-
    employees) to feel when they see many on duty employees wearing
    buttons on their hospital uniform saying, for example, “Deport
    Illegals NOW” or “Abortion is Murder” or “Unions Steal,” all
    relating to issues of at least as much public concern as “Union
    Yes.”   It makes little sense, and surely runs contrary to Connick,
    to suggest that the employer must wait until public, or co-
    employee,   dissatisfaction    or   disharmony   has   manifested   itself
    before prohibiting such on duty display.         On the other hand, to
    even then single out for prohibition one, or a few, particular
    button messages raises its own substantially more serious concerns,
    namely that the prohibition is made “because superiors disagree
    with the content of” the message, Rankin, 107 S.Ct. at 2897, or
    because the message is not “politically correct” or simply because
    the message is unpopular.
         For example, in Police Department of City of Chicago v.
    92 S. Ct. 2286
     (1972), the Court held unconstitutional a
    city ordinance prohibiting all picketing within 150 feet of a
    school, except peaceful picketing of a school involved in a labor
    dispute.   The Court stated:
          “The central problem with Chicago’s ordinance is that it
          describes permissible picketing in terms of its subject
          matter. Peaceful picketing on the subject of a school’s
          labor-management dispute is permitted, but all other
          peaceful picketing is prohibited.         The operative
          distinction is the message on a picket sign. But, above
          all else, the First Amendment means that government has
          no power to restrict expression because of its message,
          its ideas, its subject matter, or its content.” Id. at
          2290 (emphasis added).
    The Mosley Court went on to quote the views expressed in Justice
    Black’s concurring opinion in Cox v. Louisiana, 
    85 S. Ct. 453
    , 470
    (1965), that
          “‘[B]y specifically permitting picketing for the
          publication of labor union views [but prohibiting other
          sorts of picketing], Louisiana is attempting to pick and
          choose among the views it is willing to have discussed on
          its streets. It thus is trying to prescribe by law what
          matters of public interest people whom it allows to
          assemble on its streets may and may not discuss. This
          seems to me to be censorship in a most odious form,
          unconstitutional   under   the   First   and   Fourteenth
          Amendments. . . .’” Mosley, 92 S.Ct. at 2291 (quoting
          Cox, 85 S.Ct. at 470, Black, J., concurring).
    Mosley then states “we accept Mr. Justice Black’s quoted views.”
    Id.   Mosley likewise explains that:
          “In   this  case,    the  ordinance   itself   describes
          impermissible picketing not in terms of time, place and
          manner, but in terms of subject matter. The regulation
          thus slip[s] from the neutrality of time, place, and
          circumstance into a concern about content. This is never
          permitted.” Mosley at 2292 (internal quotation marks and
          footnote omitted).
         Finally, the clear – indeed the necessary – inference of the
    decisions in Letter Carriers, Broadrick and Wachsman is that in any
    balancing of interests the content and viewpoint neutral nature of
    the governmental employer’s challenged restriction weighs heavily
    in favor of its validity.76
         The net effect of these basic principles, it seems to me, is
    that the approach which both best protects core First Amendment
    values and also gives appropriate recognition to the government’s
    interests as employer, is to sustain content and viewpoint neutral
    employee on duty uniform anti-adornment policies, which leave open
    myriad other means and avenues of employee expression, rather than
    requiring the employer either to allow virtually all messages to be
    added to employee uniforms worn at work or to pick and choose on
    the basis of the particular message language and the mission
    related effects of that particular expression which the employer
    anticipates and/or has experienced.   Certainly no decision of the
          That, of course, does not mean that all content and viewpoint
    First Amendment restrictions imposed by a governmental employer on
    its employees are valid. There must be some rational nexus to the
    employment. For example, in U.S. v. National Treasury Employers
    115 S. Ct. 1003
     (1995), the Court held invalid a preclusion
    of any federal employee from accepting any compensation for making
    (or writing) any speech or article even though made or written off
    duty, concerning a subject with no connection to the employee’s
    duty and paid by a person or group having no such connection. Id.
    at 1008.    Here by contrast the neutral uniform anti-adornment
    policy applies only to employees while on duty.
    Supreme Court or of this court commands a different result or
    approach than that here advocated.77
         It is indeed a jurisprudence gone badly astray which precludes
    the nondiscriminatory, evenhanded application of the hospital’s
    content and viewpoint neutral uniform anti-adornment policy to the
    wearing of “Union Yes” buttons on duty, but at the same time, under
    Letter Carriers, Broadrick and Wachsman, permits the Hospital
    District to adopt and even handedly enforce a content and viewpoint
    neutral regulation forbidding all its employees from, even when off
    duty, addressing a political rally for an election to the Hospital
    District’s Board or handing out campaign literature for such an
    election, matters of much more public concern, but far less closely
    related to employment, than the adornment with “Union Yes” buttons
    of employee uniforms worn at work.78
          I recognize that the majority’s rationale and result here
    does find support in Scott v. Meyers, 
    191 F.3d 82
     (2d Cir. 1999),
    and in language in American Fed’n of Gov’t Employees v. Pierce, 
    586 F. Supp. 1559
     (D.D.C. 1994), although the latter decision rested
    primarily on the ground that the restriction in question was
    precluded by the plain language of the governing regulation. 586
    F.Supp. at 1651.      However, I respectfully disagree with the
    analysis in these opinions which fails to address the neutrality
    principles emphasized in Letter Carriers and Mosley, and the fact
    that the Supreme Court’s Pickering line of cases, at least so far
    as they deal with workplace expression, relate to content/viewpoint
    based retaliation or restriction.
          Ironically, the majority (footnote 25) finds comfort in the
    fact that one union member had run “for a position on the ECHD
         The majority also contends (footnote 40) that the hospital’s
    allowing the wearing of the pins of two local high schools “at the
    time of their annual football showdown” renders “especially hollow”
         We    are   taking   a   seriously   wrong   fork   in   the   road.   I
    respectfully dissent.79
    its “‘esprit de corps/unity argument” and “smacks of” content based
    discrimination.    This contention wholly fails the common sense
    test. Nor is there any evidence that wearing such pins once a year
    would tend to (or ever did) undermine employee esprit de corps or
    unity or would likely do so about as much as a whole range of other
    possible button messages, including “Union Yes” and many others
    addressing more truly serious matters than who wins a high school
    football game. Nothing is added by citing the 1990 Bissinger book
    – a strictly popular, non-peer reviewed, non-academic or scientific
    writing (which was not judicially noticed below) – for the
    proposition that the rivalry is “famously intense.”      If we are
    going to indulge in that sort of questionable practice, we might do
    better to note the sworn testimony in such cases as, for example,
    Scott v. Moore, 
    680 F.2d 979
     (5th Cir. 1982), rev’d, 
    103 S. Ct. 3352
    (1983).    The essentially silly football pin once a year type
    argument has, so far as I am aware, been uniformly rejected by the
    courts which have addressed it. See, e.g., INS v. Federal Labor
    Relations Authority, 855 F.2d at 1465; Burger King v. NLRB, 
    725 F.2d 1053
    , 1055 (6th Cir. 1984).        If local government means
    anything, we must, in the absence of clear contrary evidence, defer
    to the local hospital’s implicit decision that the once a year
    wearing of local high school pins fostered employee morale and did
    not tend to undermine employee unity or esprit de corps, or public
    perception of neutrality, as would the wide range of other buttons.
               A brief rejoinder to the majority’s replies to this
         The majority (note 11) likens this case to Mosely, but
    neglects to note Mosely’s holding that “[t]he central problem with
    Chicago’s ordinance is that” by its terms “[p]eaceful picketing on
    the subject of a school’s labor-management dispute is permitted,
    but all other peaceful picketing is prohibited.” Id., 92 S.Ct. at
    2290 (emphasis added). The majority apparently thinks that because
    the blanket uniform non-adornment policy (which neither specifies
    nor even suggests any particular prohibited subject matter) allows
    “pins representing the professional association and the most
    current hospital service award” and also once a year wearing of
    local high school pins, that it is the equivalent of a policy
    barring only specified subject matter.       In my opinion, that
    approach unrealistically trivializes – and in practical effect
    destroys – the fundamental distinction between content/viewpoint
    neutral regulations “not aimed at particular parties, groups, or
    points of view,” Letter Carriers, 93 S.Ct. at 2890, and
    restrictions imposed “simply because superiors disagree with the
    content of employees’ speech.” Rankin, 107 S.Ct. at 2897. See
    also note 10, supra. The suggestion (majority opinion note 36)
    that Letter Carriers and Broadrick are nothing more than standing
    cases simply misreads those opinions. See, e.g., Broadrick, 93
    S.Ct. at 2918 (“under the decision in Letter Carriers there is no
    question that . . . [the statute at issue] is valid at least
    insofar as it forbids classified employees from . . . addressing .
    . . partisan political rallies or meetings; participating in the
    distribution of partisan campaign literature; . . . circulating
    partisan nominating petitions . . .”) (emphasis added); Kelley, 96
    S.Ct. at 1445 (“we have sustained comprehensive and substantial
    restrictions upon activities of both federal and state employees
    lying at the core of the First Amendment,” citing Letter Carriers
    and Broadrick;) (emphasis added).