Maurer v. Independence Town

• Decision Date: 05 September 2017
• Docket Number: No. 16-30673.,16-30673.
• Citation: 870 F.3d 380
• Parties: David S. MAURER, Plaintiff v. INDEPENDENCE TOWN, Defendant David S. Maurer, Plaintiff-Appellant v. Nicholas J. Muscarello, Sr.; Carlo S. Bruno; Dennis Crocker ; Tangipahoa Parish Rural Fire Protection District No. 2, Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

870 F.3d 380

David S. MAURER, Plaintiff

v.INDEPENDENCE TOWN, Defendant

David S. Maurer, Plaintiff-Appellant

v.Nicholas J. Muscarello, Sr.; Carlo S. Bruno; Dennis Crocker ; Tangipahoa Parish Rural Fire Protection District No. 2, Defendants-Appellees

No. 16-30673.

United States Court of Appeals, Fifth Circuit.

September 5, 2017

Thomas Joseph Hogan, Jr., Esq., Hammond, LA, for Plaintiff-Appellant.

Glen Ray Galbraith, Attorney, Hammond, LA, Rachel Simes Guttmann, Thomas P. Anzelmo, Sr., Kyle Paul Kirsch, Esq., New Orleans, LA, for Defendant-Appellee.

Before DAVIS, GRAVES, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:

David S. Maurer served a contentious seven months as fire chief in Independence, Louisiana, before he was fired. He contends he was entitled to notice and an opportunity to respond before that termination. Whether the Due Process Clause affords him that right turns on whether he had a property interest in his employment. And that depends on whether he was a civil service employee under Louisiana law. He may have been a civil service employee, so we reverse the district court's grant of summary judgment and remand for further proceedings.

I.

Independence closed its town fire department at the end of 2012. The Tangipahoa Parish Rural Fire Protection District Number 2 (the District), a political subdivision of the parish, took over fire protection services for the town and surrounding areas. The District divided its jurisdiction into service areas and contracted with ten volunteer fire departments to provide fire protection services in defined areas. For Independence, that department was the Independence Volunteer Fire Department (the Volunteer Department).

An unexecuted contract in the record sets out the relationship between the District and the ten volunteer departments, including the Independence Volunteer Department. The contract provides that the District will collect and allocate tax dollars to the departments, and, in return, the departments will "respond to any and all calls in their respective areas of responsibility." The departments also agree that "[a]ll additions or other changes to personnel shall be ratified in accordance with the annual budget adopted by the Board of Commissioners of the District" and that purchases of property or equipment, or modifications to existing property, with a cost of more than $10,000 must be preapproved by the District. Although the departments "administer their own payroll," payroll expenses are reimbursed by the District. Such expenses will "not be reimbursed for any position that has not been ratified by the Board of Commissioners of the District." When a department wants to hire a job applicant, that decision "must be ratified by the District." The applicant must undergo a background check and drug and alcohol testing, and written evidence that the applicant was advised of these requirements must be sent to the District.

The contract also mandates that volunteer department members comply with District policies and states that, if they do not, the District has the authority to require the volunteer department to fire the member:

If an individual Fire Department does not take timely action against its members and/or volunteers who have violated the [District's] adopted policies and procedures, the violation(s) shall be immediately reported to the Administrator [of the District] and forwarded to the Board of Commissioners of the District. After an investigation has been completed, the District board will render a final decision, which shall be binding upon all Fire Departments

....

The policies adopted by the District include recommended duties and a mandatory code of conduct, drug and alcohol abuse policy, social media policy, code of ethics, sexual and other harassment policy, and procedures for dealing with complaints against a volunteer department or department employee. According to the policies, the District has the authority to investigate any complaint, determine whether it is supported by sufficient evidence, and take "the appropriate action" under the District's disciplinary policy.

In accordance with the new arrangement, Independence terminated its firefighters at the end of 2012, and the Volunteer Department hired them. Around this time, Maurer, who previously worked for Independence's fire department, became fire chief of the Volunteer Department. There is some dispute about how he was hired. But taking the facts in the light most favorable to Maurer, Defendant Dennis Crocker, the previous fire chief for Independence and incoming administrator for the District, selected him, and both the District's Board of Commissioners and the Board of Directors of the Volunteer Fire Department reviewed and approved the hire. The record includes an "Approval to Hire" form for Maurer's position titled "Tangipahoa Parish Rural Fire #2 Position Requisition/Approval to Hire Form."

During the seven months Maurer was fire chief, his paychecks came from the Volunteer Department, although the District allocated the funds. He set schedules for the Department's firefighters and managed the Department's day-to-day activities. He also had control over funds that came from donations. But he testified that "anything [he] needed, as far as buying something, hiring somebody, salary approvals, all went through" the District. He confirmed that, in accordance with the contract, if he sought to hire a firefighter, he would "seek approval from Fire District 2," and if it was denied, he could not hire the employee. District board meeting minutes confirm that he sought and received approval for hires. In terms of Maurer's own pay, he claims that he expected his salary to increase after six months on the job, but the District refused to increase the funds allocated for it. A fire chief for another department contracting with the District submitted an affidavit saying that the District similarly set his salary and told him it controlled hiring for his department.

During his tenure Maurer had numerous disagreements with Crocker. For example, Crocker recommended that Maurer fire a firefighter, but Maurer did not do so. Maurer changed the way medical calls were handled in a way that displeased Crocker. Maurer also sent firefighters for training in a different program than the one Crocker preferred. They also disagreed about whether Maurer should hire Crocker's son, despite an opinion from the Louisiana Board of Ethics that doing so would be improper. Maurer also described an instance when Crocker publicly criticized him for failing to get fire marshal approval for a fireworks show. At his deposition, Maurer said he suffered no negative repercussions for disregarding Crocker's input because Crocker was not his boss.

But after seven months, following an investigation by Crocker, the Board of the Volunteer Department voted to terminate Maurer's employment. The record is vague about the details of the process for removing Maurer, but there is some evidence indicating that the District was involved. The Independence town clerk stated that shortly before Maurer's removal, at Crocker's behest and with input from a member of the District's Board of Commissioners, she wrote a letter to the District listing complaints about Maurer's behavior and threatening to withhold payments to the District in the amount of Maurer's salary if Maurer was not removed.

Maurer filed suit raising a procedural due process claim under section 1983 against the District, Crocker, and two members of the District's Board of Commissioners. Defendants moved for summary judgment on the ground that Maurer had no property interest in his employment and thus no constitutional protections. The district court agreed.

II.

In ruling on the motion for summary judgment, the district court refused to consider the contract between the District and the ten volunteer departments that has all those details about the entities' relationship detailed above. It thought the contract was inadmissible because it was unexecuted, unauthenticated, and did not include a separate agreement—a cooperative agreement between the District and the Volunteer Department—it purported to attach.

We review a district court's evidentiary rulings when it determines the summary judgment record under an abuse of discretion standard. See Curtis v. M&S Petroleum, Inc. , 174 F.3d 661, 667 (5th Cir. 1999). Although that standard is deferential, an "erroneous view of the law" meets it. Brown v. Ill. Cent. R.R. Co. , 705 F.3d 531, 535 (5th Cir. 2013) (quoting Knight v. Kirby Inland Marine, Inc. , 482 F.3d 347, 351 (5th Cir. 2007) ).

That is what happened here. At the summary judgment stage, evidence need not be authenticated or otherwise presented in an admissible form. See FED. R. CIV. P. 56(c) ; Lee v. Offshore Logistical & Transp., LLC , 859 F.3d 353, 355 (5th Cir. 2017) ; LSR Consulting, LLC v. Wells Fargo Bank, N.A. , 835 F.3d 530, 534 (5th Cir. 2016). After a 2010 revision to Rule 56, "materials cited to support or dispute a fact need only be capable of being ‘presented in a form that would be admissible in evidence.’ " LSR Consulting, LLC , 835 F.3d at 534 (quoting FED. R. CIV. P. 56(c)(2) ).¹ This flexibility allows the court to consider the evidence that would likely be admitted at trial—as summary judgment is trying to determine if the evidence admitted at trial would allow a jury to find in favor of the nonmovant—without imposing on parties the time and expense it takes to authenticate everything in the record. See FED. R. CIV. P. 56(c)(1)(A).

There is nothing to compel a conclusion that the contract—one of the more common types of exhibits admitted in civil cases—is not capable of being admitted at an eventual trial. It is undisputed that the District and Volunteer Department entered into an agreement. The contract Maurer submitted appears to be that agreement, and Defendants have not argued otherwise. The absence of a signature does not make the contract inadmissible...