* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30524

ELIZABETH RUTHERFORD; DONNA LIMA; REBECCA SHEPLER;

HAROLD BURNS; MARVELLE DAUTERIVE; JIM QUAID

Plaintiffs-Appellants

v.

EDMOND J MUNIZ; CITY OF KENNER

Defendants-Appellees

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:06-CV-10702

Before JONES, Chief Judge, and BARKSDALE and STEWART, Circuit Judges.

PER CURIAM:*

Through this Federal Rule of Civil Procedure 54(b) interlocutory appeal,

Appellants, former City of Kenner employees, challenge the adverse summary

judgment awarded against their patronage-dismissal claims. At issue is

whether a genuine issue of material fact exists on whether they were terminated

United States Court of Appeals

Fifth Circuit

F I L E D

May 29, 2008

Charles R. Fulbruge III

Clerk
No. 07-30524

2

from their employment in retaliation for their political support of the City’s

previous mayor. AFFIRMED and REMANDED.

I.

Appellants were employed by the City, while Phil Capitano was its mayor;

they supported him during his reelection campaign. Edward J. Muniz won that

election, however. He terminated Appellants’ employment when he took office.

Appellants filed this action, alleging, inter alia, that Mayor Muniz:

determined, prior to taking office, which employees did not support his

campaign; and terminated Appellants’ employment because they supported

former-mayor Capitano. Among other claims, Appellants asserted their

terminations were “patronage dismissals”, violating their constitutional rights

to support a political candidate via discourse and campaigning. 

After a hearing, the district court, from the bench, granted summary

judgment against the patronage-dismissal claims, concluding Appellants failed

to raise a genuine issue of material fact on whether their terminations were in

retaliation for their political activity. Final judgment for those claims was

entered pursuant to Rule 54(b). (The patronage-dismissal claims are the only

claims dismissed pursuant to the Rule 54(b) final judgment and properly raised

in this interlocutory appeal; accordingly, only those claims are addressed here.)

II.

A summary judgment is reviewed de novo, applying the same standard as

did the district court. E.g., Wheeler v. BL Dev. Corp., 415 F.3d 399, 401 (5th Cir.

2005). Such judgment is appropriate if there is no genuine issue of material fact

and the movant is entitled to judgment as a matter of law. FED. R. CIV.P. 56(c).

The first prong of this two-part test is in issue. 
No. 07-30524

3

“We resolve doubts in favor of the nonmoving party and make all

reasonable inferences in favor of that party.” Dean v. City of Shreveport, 438

F.3d 448, 454 (5th Cir. 2006). No genuine issue of material fact exists, however,

if, based on the summary-judgment evidence, no reasonable juror could find for

the nonmovant. E.g., Jenkins v. Methodist Hosps. of Dallas, Inc., 478 F.3d 255,

260 (5th Cir.), cert. denied, 128 S. Ct. 181 (2007). 

Appellants maintain the summary judgment against their patronagedismissal claims was improper because: they had no opportunity for discovery;

and, in the alternative, a genuine issue of material fact exists on whether they

were terminated for supporting the former mayor. These contentions are

without merit, as discussed below.

A.

Appellants first maintain summary judgment was improper because it was

granted before they conducted discovery. Assuming they did not conduct

discovery (Appellants, however, conceded at oral argument here that they did

conduct some discovery), they complained of their lack of discovery at the

summary-judgment hearing. This notwithstanding, for the following reasons,

the judgment was not premature.

Upon a summary-judgment movant’s showing the absence of a genuine

issue of material fact, a nonmovant bears the burden of showing such an issue

for trial. E.g., Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 163-64 (5th

Cir. 2006). A district court can deny summary judgment or order a continuance

for discovery, under Rule 56(f), if the nonmovant shows by affidavit it cannot yet

present facts essential to justify its opposition to summary judgment. FED. R.

CIV. P. 56(f); see Adams, 465 F.3d at 162. “A non-movant seeking relief under
No. 07-30524

4

Rule 56(f) must show: (1) why he needs additional discovery and (2) how that

discovery will create a genuine issue of material fact.” Adams, 465 F.3d at 162.

Appellants’ opposition to summary judgment will be assumed to include

their seeking discovery. Nevertheless, as the district court stated at the

summary-judgment hearing, “[Appellants did not supply] anything under [Rule]

56(f) that would suggest that these terminations were based on . . .

impermissible constitutional grounds”. As such, Appellants did not meet their

burden. See id. (“A party ‘cannot evade summary judgment simply by arguing

that additional discovery is needed,’ and may not ‘simply rely on vague

assertions that additional discovery will produce needed, but unspecified, facts.’”

(footnotes omitted)). Accordingly, the district court did not abuse its discretion

in not denying summary judgment due to Appellants’ asserted lack of discovery.

B.

In the alternative, Appellants contend summary judgment was improper

because their summary-judgment evidence raises a genuine issue of material

fact on Mayor Muniz’ motive for terminating their employment. They failed,

however, to produce such evidence.

“[T]ermination of employees for political reasons is presumptively violative

of the First Amendment”. Correa v. Fischer, 982 F.2d 931, 933 (5th Cir. 1993).

Along this line,“an essential elementto the plaintiffs’ case is demonstrating that

the termination was politically motivated”. Id. (citations omitted). “Prima facie

proof of a constitutional violation must include evidence of impermissible

motive.” Tanner v. McCall, 625 F.2d 1183, 1193 (5th Cir. 1980) (citations

omitted). In sum, to survive summary judgment, Appellants were required to

produce sufficient evidence to create a genuine issue of material fact on whether
No. 07-30524

5

their terminations were motivated by an intent to retaliate against them for

their political support of the former mayor. See id.

Appellants rely on affidavits they contend prove “the reasons given to

justify termination ofthe [Appellants] were merely pretext”. Even assuming the

affidavits establish Defendants’ reasons for Appellants’ terminations are false,

that is insufficient to create a genuine issue of material fact concerning political

motivation. See Dudley v. Angel, 209 F.3d 460, 463 n.5 (5th Cir. 2000) (stating

whether plaintiff was terminated for the reason provided by defendant “might

present a disputed fact, but it is not material to a claim of a constitutionally

infirm motive”); see also Tanner, 625 F.2d at 1193-94 (explaining plaintiff’s

burden on constitutional-retaliation claim is not met by disproving common

reasons for termination). 

Pursuant to our de novo review of the summary-judgment record, and as

the district court stated, “[Appellants presented no evidence to] suggest that

these terminations were based on . . . impermissible constitutional grounds”.

Accordingly, no genuine issue of material fact exists on whether their

terminations were motivated by political retaliation. See Garcia v. Reeves

County, Tex., 32 F.3d 200, 204 (5th Cir. 1994) (holding “plaintiffs cannot

establish a fact dispute simply by proving up a contested political race and

subsequent firings”). 

In this regard, Appellants contend summary judgment is improper because

motive is at issue. It goes without saying that a disputed motive, alone, does not

make summary judgment improper; there must be a genuine issue of material

fact. See, e.g., Idoux v. Lamar Univ. Sys., No. 93-5163, 1994 WL 558880, at *3

n.9 (5th Cir. 28 Sept. 1994) (per curiam) (unpublished) (“While motivation is a
No. 07-30524

6

question of fact, it does not preclude summary judgment unless there is a

genuine issue of material fact.” (citations omitted)).

Finally, in the light of the above-described absence of a genuine issue of

material fact, we need not reach whether Appellants held “confidential” or

“policymaking” positions not entitled to First Amendment protection. See Aucoin

v. Haney, 306 F.3d 268, 272-73 (5th Cir. 2002) (citing Branti v. Finkel, 445 U.S.

507 (1980); Elrod v. Burns, 427 U.S. 347 (1976)).

III.

For the foregoing reasons, the judgment is AFFIRMED and this matter

is REMANDED to district court for further proceedings on any remaining

claims.