Swanson v. City of Bruce

United States Court of Appeals
Fifth Circuit
F I L E D
July 1, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-60541
_______________
LARRY SWANSON,
Plaintiff-Appellant,
VERSUS
CITY OF BRUCE, MISSISSIPPI,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Mississippi
m 3:00-CV-195-D
_________________________
Before SMITH, WIENER, AND BENAVIDES,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
I.
Larry Swanson was hired by the City of
Bruce, Mississippi, in 1990 as a part-time pa-
trol officer while still serving as an elected
constable of Calhoun County, Mississippi, a
job he has held since 1988. The city is small
and has only seven patrol officers. Swanson
worked his way up the rank of assistant chief
of police, a position he obtained in 1997.
Swanson did not receive any complaints
from city officials about his performance until
E.J. Bobo, who is black, was hired as police
chief in 1997 following a 3-2 vote in his favor
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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by the city’s aldermen. Swanson claims the
two aldermen who voted against Bobo were
alleged to be racist and that, later, several al-
dermen tried to undermine Bobo because of
his race, making racist comments and
bypassing his authority to direct the work of
the officers. The city denies these allegations
and contends that Bobo’s performance as chief
was poor.
At a January 3, 2000, meeting, the Board of
Aldermen decided to develop new goals and
objectives for the police department and to
solicit input from academics and other law en-
forcement experts. On February 1, the board
adopted new proposed performance goals,
standards, and job descriptions. The city
claims these were adopted wholesale from the
mayor’s recommendation, which was in turn
based on outside advice.
The new job descriptions required the as-
sistant chief to be a full-time employee
certified as a police officer. Swanson could
not work full-time and fulfill his elective duties
as constable. Also, he was not certified as a
police officer, though he had received some
similar training as a constable.
On May 6, the aldermen voted to discharge
Swanson and Bobo. The letter of termination
indicated that “lack of department unity” was
the reason for Swanson’s discharge. Swanson
was replaced by a certified police officer, who
was apparently otherwise uninvolved in the
dispute among Swanson, Bobo, and the board.
Swanson alleges that his firing was in re-
taliation for his support of Bobo, as embodied
in public statements before the Board of Al-
dermen and in conversations with its members.
After filing charges of discrimination with the
Equal Employment Opportunity Commission,
Bobo and Swanson filed separate complaints
in federal district court. Swanson asserted
claims pursuant to 42 U.S.C. §§ 1981 and
1983 and title VII.
The district court granted summary
judgment to the city with respect to Swanson’s
claims and partial summary judgment with re-
spect to Bobo’s. The court found that Swan-
son had failed to address his First Amendment
freedom of association claim and that it failed
as a matter of law. The court further found,
with respect to his retaliatory and
discriminatory firing claims, that Swanson had
presented no evidence that he was qualified for
the assistant chief position or that the change
in qualifications was motivated by animus
against him.
Swanson appealed, but his appeal was dis-
missed for lack of jurisdiction because there
was no final order. Bobo settled with the city,
and the district court entered a final order dis-
missing the suit with prejudice.
On review, we approach the district court’s
grant of summary judgment de novo, applying
the same standards as required of the district
court. Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986). The city is entitled to summary
judgment if there is no genuine issue of
material fact and the city is entitled to
judgment as a matter of law. FED. R. CIV. P.
56(c). The panel, on review, must draw all
reasonable inferences from the fact in favor of
the nonmoving party. Flock v. Scripto-Tokai
Corp., 319 F.3d 231, 236 (5th Cir. 2003).
II.
Swanson claims that when the city
terminated him, it violated his First
Amendment right to freedom of association.
Particularly, he alleges that his firing, coupled

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with Bobo’s, severed a protected relationship
between them. This claim is meritless.
The Supreme Court has recognized two
broad varieties of freedom of association pro-
tected by the Constitution. The first includes
the right to enter into intimate relationships,
including the union of marriage, and to main-
tain other close familial relationships. City of
Dallas v. Stanglin, 490 U.S. 19, 23-24 (1989);
Zablocki v. Redhail, 434 U.S. 374, 383-86
(1978).
Such intimate relationships must at least
involve “deep attachments and commitments
to the necessarily few other individuals with
whom one shares not only a special com-
munity of thoughts, experiences, and beliefs,
but also distinctively person aspects of one’s
life.” Roberts v. United States Jaycees, 468
U.S. 609, 620 (1984). These relationships
“are distinguished by such attributes as relative
smallness, a high degree of selectivity in
decisions to begin and maintain the affiliation,
and seclusion from others in critical aspects of
the relationship.” Id. The second variety in-
cludes the right of individuals to associate with
others for the purpose of engaging in activities
otherwise protected by the Constitution,
especially including the First Amendment’s
guarantees of free speech, assembly, and
religion. Id. at 622.
Though Bobo and Swanson were
momentarily bound by common speech goals,
their relevant relationship is essentially social
and professional in nature. The tight
fellowship among police officers, precious
though it may be, does not include such “deep
attachments and commitments of thoughts,
experiences, and beliefs” or personal aspects
of officers’ lives sufficient to constitute an
intimate relationship. Id. at 620. Neither did
Swanson and Bobo’s employment relationship
arise for the purpose of engaging in protected
speech. Accordingly, the law of the Supreme
Court and this circuit do not recognize the
relationship between Swanson and Bobo as
one protected under the freedom of
association clause.
Swanson also alleges that he was subject to
a racially discriminatory firing, as defined by
42 U.S.C. § 2000e-2(a)(1), an element of title
VII. The subsection provides that “it shall be
an unlawful employment practice for an
employee . . . to discharge any individual . . .
because of such individual’s race . . . .” Id.
(emphasis added). That is, the person who is
discharged must be discharged on account of
his race, not on account of any third party’s
race. Here, Swanson is white, and no one sug-
gests that he was fired for that reason.1 Rath-
er, at most, Swanson was terminated as an in-
direct result of Bobo’s race. So, Swanson
finds no relief under the plain language of
§ 2000e-2(a).
Swanson’s § 1981 claim has more merit,
however. The section allows a terminated em-
ployee to recover where his firing was in retal-
iation for his speech acts in support of the
rights of minorities. Pinkard v. Pullman-Stan-
dard, 678 F.2d 1211, 1229 n.15 (5th Cir.
1 The closest this court has come to Swanson’s
logic is in Deffenbaugh-Williams v. Wal-Mart
Stores, Inc., 156 F.3d 581, 589 (5th Cir. 1998), re-
instated in relevant part on reh’g en banc, Wil-
liams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th
Cir. 1999) (per curiam) (en banc), in which we al-
lowed a white plaintiff to press a claim under 42
U.S.C. § 2000e-2(a) when discharged on account
of her interracial marriage. There, however, al-
though the person who was terminated was white,
her race nonetheless was the cause of the discrim-
inatory treatment, if only because her race differed
from that of her husband.

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1980)2; see Foley v. Univ. of Houston Sys.,
355 F.3d 333, 339 (5th Cir. 2003). Swanson
alleges that he was fired because he supported
Bobo, a black man, against racist attempts to
undermine him.
As a protected person under § 1981, Swan-
son may press a claim for retaliatory firing and
have that claim considered under the familiar
burden-shifting framework of McDonnell
Douglas Corp. v. Green,. 411 U.S. 792, 802-
03 (1973). To prevail through circumstantial
evidence, Swanson must first make a prima
facie case by showing that he is a protected
person, that he is qualified for the position,
that he was subjected to an adverse em-
ployment action, and that he was replaced by
someone outside the protected class. See id.
at 802; Shackelford v. Deloitte & Touche, 190
F.3d 398, 404 (5th Cir. 1999).
Swanson is a protected person, again by
virtue of his speech, and he suffered an
adverse action through his termination. And
he was replaced by someone outside his
protected class—in this case, by a person who
had no history of agitating in favor of Bobo or
against the board of aldermen. As for his
qualification for the assistant chief position,
even if he did not fulfill the new formal
requirements passed by the city, Swanson’s
prior service is evidence that he was at least
minimally qualified to continue in his duties.3
Indeed, in his capacity as an elected constable,
he had been required to receive the same aca-
demic and firing range training as typically
required of police officers. Accordingly,
Swanson has stated a prima facie case for a
retaliatory firing.
In satisfaction of the second step of the Mc-
Donnell Douglas framework, the city offers a
legitimate non-discriminatory explanation for
Swanson’s termination: The new standards
under which Swanson was terminated were
calculated to improve the police department.
See McDonnell Douglas, 411 U.S. at 802.
The third step of McDonnell Douglas al-
lows Swanson to attempt to show, by a
preponderance of evidence, that the city’s
proffered explanation was mere pretext for re-
taliation. Id. at 804. He presents evidence
that (1) aldermen stopped speaking to him
after he had defended Bobo; (2) they
undermined his authority by discussing police
business with his subordinates instead of with
him; (3) the adoption of the new job
requirements was made soon after he agitated
for Bobo; (4) he was not given a full op-
portunity to meet the city’s new requirements;
(5) he was fired the same day as Bobo, and
(6) he was not given the opportunity to accept
a demotion to patrolman. This is sufficient to
2 The court in Pinkard explained that “[a] claim
under § 1981 may be based upon retaliatory action
taken against an employee for the employee’s
lawful advocacy of the rights of racial minorities .
. . .” See also Winston v. Lear Siegler, 558 F.2d
1266 (6th Cir. 1977) (stating that white person
fired for protesting an asserted racially motivated
firing of a non- white may sue under § 1981);
Caldwell v. Nat’l Brewing Co., 443 F.2d 1044
(5th Cir. 1971) (stating that plaintiff alleging that
he was discharged because he complained about
racially discriminatory employment practices may
intentionally bypass EEOC and seek relief under §
1981).
3 It would be circular reasoning to assert that
Swanson was unqualified merely because he did
not satisfy the city’s newly-enacted standards. Af-
ter all, it is Swanson’s very claim that the stan-
dards were promulgated as a pretext for discrim-
ination. Whether the standards were a veil for
discriminatory intent is more properly a question
for the third step of the McDonnell Douglas bur-
den-shifting regime, not the first.

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create a genuine issue o f material fact as to
whether Swanson suffered a retaliatory
termination, so that matter should go to a jury.
The summary judgment on the § 1981 claim
is REVERSED. The judgment is otherwise
AFFIRMED. This matter is REMANDED for
further appropriate proceedings.

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