IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-31048

BRIAN LINDBERG,

Plaintiff–Appellant,

v.

BOSSIER PARISH AMBULANCE SERVICE DISTRICT, also known as Bossier

Parish Emergency Medical Service; DUXIE SCOTT, Individually and In His

Official Capacity as Director of the Bossier Parish Emergency Medical Service;

CHERYL MCENTYRE, Individually and In Her Official Capacity as Assistant

Director of the Bossier Parish Emergency Medical Service,

Defendants–Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 05:07-CV-641

Before GARWOOD, OWEN and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Brian Lindberg appeals the district court’s grant of summary judgment in

favor of Bossier Parish Emergency Medical Service (BPEMS), Duxie Scott, and

Cheryl McEntyre dismissing Lindberg’s claims for wrongful termination. We

affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

November 22, 2010

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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I

Bossier Parish Emergency Medical Services (BPEMS) was formed to

provide general medical services to citizens of Bossier Parish. BPEMS provides

advanced life-support services, which can be provided only by paramedics.

BPEMS therefore hires only individuals who are already certified paramedics

or who indicate a desire to complete their paramedic certification while employed

at BPEMS.

In February 2005, BPEMS hired Lindberg as an Emergency Medical

Technician–Intermediate. During his interview, Lindberg told Director Duxie

Scott and Human Resources manager Fred McAnn that he was interested in

taking paramedic classes and that it was his desire to become certified as a

paramedic.

Some time during the hiring process or shortly after he was hired,

Lindberg learned that BPEMS received funding from Bossier Parish Community

College (BPCC) for employees to attend a paramedic program. Amanda Waller,

who was also hired in early 2005, Tommy Gilmer, an existing employee, and

other employees began taking prerequisite courses for the program in the spring

of 2005. Lindberg took prerequisites courses during the summer session in 2005.

All the students, including Lindberg, attended class and worked their regularly

scheduled shifts when not in class. For Lindberg and the other new employees,

the paramedic program was scheduled to begin in the fall of 2005, for those

taking night classes, and in the spring of 2006, for those taking day classes.

Lindberg opted to participate in the day classes after Assistant Director Cheryl

McEntyre told him that, if he chose the day classes, he would not be required to

work his scheduled shifts on days that he was also scheduled to attend class.

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During early 2005, employees in BPEMS, including Lindberg, began to

organize a local labor association, consisting of employees in BPEMS. BPEMS

employee Larry Hadley told Scott about these efforts, and Scott responded by

telling Hadley that he did not like the fact that employees were attempting to

organize “behind closed doors” and that they had not asked his opinion of their

organizing efforts. Scott said that he felt “dumped on” by the employees’ decision

to organize the union “behind his back.”

In August 2005, at a meeting of the BPEMS Board of Commissioners,

Hadley told the Board that employees intended to form a labor organization.

Immediately afterwards, Scott approached John A. James, Stacy Birdwell, and

Jamie Touchet, who were representatives of the Louisiana Professional Fire

Fighters Association. Scott told them that he could prevent the formation of the

union by firing BPEMS probationary employees. Scott was aware that if either

of the two probationary employees was terminated, the association would not

have enough votes to form. Neither of these employees, one of whom was

Lindberg, was terminated, and a union was formed.

Lindberg became an active union member and was selected to become a

union steward. He did not, however, tell Scott that he was a member of the

union, and there is no evidence that Scott learned of Lindberg’s union

membership.

At some point after Lindberg’s hiring, McEntyre informed him that “plans

had changed” and that Lindberg would now be required to attend classes and

work his regularly scheduled shifts on the same days. As a result of these

changes, Lindberg refused to attend the paramedic program. At a meeting of the

BPEMS Board of Commissioners on March 15, 2006, he stated his reasons for

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not participating:

I refused to go by those guidelines. . . . What they were telling me

was that I was going to go to class Monday through Friday 8:00 to

3:00, then I was going to have to work on a truck whenever they tell

me to at night and weekends and also cover for another girl’s shift.

On April 13, 2006, Lindberg’s employment was terminated. The

termination letter stated: “You are being terminated due to your failure to meet

the requirements to enter the current program and your statements you have no

interest in obtaining your paramedic certification.”

Lindberg filed suit in the Western District of Louisiana for unlawful

termination against BPEMS, Scott, and McEntyre, pursuant to 42 U.S.C. § 1983.

Lindberg argued that the termination violated his constitutional right of freedom

of association and that it was in violation of Louisiana Revised Statute § 23:833.

He also alleged that he was denied due process because he was terminated

without notice, an opportunity to defend himself, or a post-termination review.

The district court granted the defendants’ motion for summary judgment on all

claims. Lindberg timely appealed regarding the freedom of association and due

process claims.

II

We review the district court’s grant of summary judgment de novo.

1

Summary judgment is appropriate where “there is no genuine issue as to any

material fact and . . . the movant is entitled to judgment as a matter of law.”

2

Under this standard, the court must draw all permissible inferences from the

Settlement Funding, LLC v. TransAmerica Occidental Life Ins. Co., 555 F.3d 422, 424 1

(5th Cir. 2009).

 FED. R. CIV. P. 56(c)(2). 2

4

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underlying facts in the light most favorable to the party opposing the motion.

3

III

Lindberg alleges that the defendants violated his right to free association

under the First Amendment by terminating him because of his involvement in

the local labor association. Although there is no right to government

employment, the denial or deprivation of government employment may not be

based on one’s exercise of First or Fourteenth Amendment rights. It is well4

established that the First Amendment right to free association includes the right

to join unions.

5

This court uses a three-part analysis when addressing the claims of local

government workers who assert that they have been retaliated against for

exercising their right of free association. To prevail on a § 1983 retaliation claim

based on freedom of association, an employee must establish that (1) he suffered

an adverse employment action; (2) his interest in associating outweighs the

employer’s interest in promoting efficiency; and (3) his protected activity was a

substantial or motivating factor in the adverse employment action.

6

Lindberg’s termination clearly constitutes an adverse action, and we will

assume for the purpose of argument that Lindberg’s interest in associating with

the union outweighed BPEMS’s interest in providing efficient operations. The

question, then, is whether Lindberg’s associational activity was a substantial or

motivating factor in the adverse action taken against him. In order to establish

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

3

 Rutan v. Republican Party, 497 U.S. 62, 72 (1990). 4

Prof’l Ass’n of Coll. Educators v. El Paso Cnty., 730 F.2d 258, 262 (5th Cir. 1984).

5

Hitt v. Connell, 301 F.3d 240, 246 (5th Cir. 2002).

6

5

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this prong, Lindberg must at least demonstrate that Scott knew about

Lindberg’s activity.

7

Lindberg has presented no evidence in this regard. Scott stated that he

did not know of Lindberg’s activities. Lindberg admits that he never told Scott

of his membership in the association. There is no evidence that the few BPEMS

supervisors who knew of Lindberg’s membership relayed this information to

Scott. When an employer does not know of an employee’s associational activity,

such activity cannot be a substantial or motivating factor in an adverse

employment action.

8

Lindberg points to Scott’s comments after the August 2005 board meeting

as evidence that Scott knew that Lindberg supported the union. At that

meeting, Scott claimed that he could prevent the union’s formation by firing the

two probationary employees, one of whom was Lindberg. Without these votes,

Scott knew that the employee vote would be 10 to 9 against formation. This

comment, however, provides no evidence that Scott knew that Lindberg would

vote in favor of union formation. It demonstrates only that Scott knew that it

would be impossible for the union supporters to obtain a majority vote if the two

provisional employees did not vote. Scott’s comments after the August meeting

provide no evidence that he knew Lindberg favored the union.

Nor is there evidence in the record that suggests that McEntyre knew of

Lindberg’s union membership or that she had any anti-union animus. Lindberg

points only to the fact that McEntyre drafted his termination letter. This

provides insufficient evidence that Lindberg’s union membership was a

See Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 883 (5th Cir. 2005).

7

Id.

8

6

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substantial or motivating factor in the decision to fire him.

Lindberg argues that his termination violated his due process rights. The

requirements of due process “apply only to the deprivation of interests

encompassed by the Fourteenth Amendment’s protection of liberty and

property.” Whether an employee has a property interest in his job is

9

determined by state law. Under Louisiana law, there are two ways in which

10

employees can have a property interest in their job: (1) if the employer

contracted with the employees to fire them only for cause or (2) if the employees

are permanent classified employees under the Louisiana civil service system.

11

There is no evidence that BPEMS contracted with Lindberg to fire him

only for cause, nor was Lindberg a permanent classified employee under the

Louisiana civil service system. Therefore, Lindberg did not have a protected

property interest in continued employment at BPEMS.

Lindberg claims that his termination violated his protected liberty

interest. To determine whether a public employee has been deprived of a

protected liberty interest, a court must ask whether he was “terminated for a

reason which was (i) false, (ii) publicized, and (iii) stigmatizing to his standing

or reputation in his community or terminated for a reason that was (i) false and

(ii) had a stigmatizing effect such that (iii) he was denied other employment

opportunities as a result.” “False” in this context does not mean that the stated

12

Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972). 9

Wallace v. Shreve Mem’l Library, 79 F.3d 427, 429 (5th Cir. 1996). 10

Id.

11

Whiting v. Univ. of S. Miss., 451 F.3d 339, 347 (5th Cir. 2006) (quoting Cabrol v. 12

Town of Youngsville, 106 F.3d 101, 107 (5th Cir. 1997)).

7

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reason for termination was pretextual. Rather, it means that the stated reason

was factually incorrect.

13

Lindberg’s termination letter stated that he was being terminated “due to

[his] failure to meet the requirements to enter the current program and [his]

statements [that he had] no interest in obtaining [his] paramedic certification.”

Lindberg argues that this reason was false because he never refused to obtain

his paramedic certification. Rather, according to Lindberg, he had merely

requested that BPEMS allow him to attend the paramedic program without

having to attend his regularly scheduled shifts on class days.

The record, however, clearly establishes that Lindberg expressly refused

to attend the paramedic program as long as he was required to comply with

BPEMS’s work policy. Because Lindberg refused to attend paramedic training

in accordance with BPEMS requirements, he was not terminated for a reason

that was “false.” Thus, his termination did not violate due process.

* * *

For the foregoing reasons, we AFFIRM the judgment of the district court.

See Cabrol, 106 F.3d at 107 (determining that the plaintiff had not shown that the 13

stated reason for his termination was false when he did not controvert the factual bases for

his dismissal).

8

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