     Case: 16-31157      Document: 00514115214         Page: 1    Date Filed: 08/14/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals

                                    No. 16-31157
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                           August 14, 2017
                                                                              Lyle W. Cayce
JOSEPH METZLER,                                                                    Clerk


              Plaintiff–Appellant,

v.

KENNER CITY, Louisiana; MIKE YENNI, Individually,

              Defendants–Appellees.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:15-CV-910


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM:*
       We affirm the district court’s judgment. Joseph Metzler worked as an
electrical inspector for the City of Kenner’s Department of Inspections and
Code Enforcement.           After he was terminated from employment and
subsequently reinstated, he brought suit under 42 U.S.C. § 1983 against Aimee
Vallot, Director of Inspections and Code Enforcement; Richard Walther,



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                     No. 16-31157
Assistant Director of Inspections and Code Enforcement; Mike Yenni, former
Mayor of the City of Kenner; and the City of Kenner. Metzler claims he was
wrongfully terminated in retaliation for exercising his First Amendment rights
and that his termination violated his due process rights under the Fourteenth
Amendment.
      The district court dismissed Metzler’s claims for punitive damages
against the City of Kenner and granted Metzler’s request to amend his
complaint. The district court also dismissed with prejudice Metzler’s claims
against Yenni, Vallot, and Walther in their official capacities as well as
Metzler’s vicarious liability claims against the City of Kenner based on the
actions of Yenni, Vallot, and Walther.             Metzler does not appeal those
dismissals. The only claims remaining are Metzler’s § 1983 claims against
Yenni in his individual capacity and the City of Kenner (the Defendants). The
Defendants filed a motion to dismiss for failure to state a claim or, in the
alternative, a motion for summary judgment.               The district court granted
summary judgment for the defendants. Metzler appealed.
      “To state a section 1983 claim, ‘a plaintiff must (1) allege a violation of a
right secured by the Constitution or laws of the United States and (2)
demonstrate that the alleged deprivation was committed by a person acting
under color of state law.” 1 With regard to Metzler’s claim against Yenni in his
individual capacity, Metzler “must establish that [Yenni] was either personally
involved in the deprivation or that his wrongful actions were causally
connected to the deprivation.” 2
      Metzler alleges that Yenni instructed Vallot to conduct a “sham”
investigation into citizen complaints filed against Metzler for his operation of


      1   James v. Tex. Collin County, 535 F.3d 365, 373 (5th Cir. 2008) (quoting Moore v.
Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000)).
        2 Id.

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                                     No. 16-31157
city vehicles and, subsequently, to terminate him. The district court concluded
that the Defendants presented sufficient evidence on summary judgment to
negate an essential element of Metzler’s claim, namely that Yenni’s conduct
deprived Metzler of his constitutional rights or that Yenni’s conduct was
causally connected to the alleged constitutional violations. We agree. Yenni
testified at Metzler’s hearing before the Kenner Civil Service Board that he did
not have any conversations with Vallot or Walther about terminating Metzler.
Walther testified that he did not discuss Metzler’s termination with Yenni.
Vallot testified that no one from the city administration pressured her to
terminate Metzler and that the decision was “[hers] and [hers] alone.” She
explained that Metzler’s history of complaints about his driving and his
unwillingness to accept responsibility for his actions contributed to her
decision to terminate him.
       The Defendants also offered Metzler’s own testimony confirming he had
no admissible evidence that Vallot was instructed by another person to
terminate him. Metzler presented the affidavit of former city council member
Kent Denapolis, in which Denapolis states that when he asked Vallot why
Metzler was terminated, she answered “I like Joey. This is not my decision. It
is out of my hands.” We agree with the district court that this evidence is
inadmissible hearsay and therefore not competent summary judgment
evidence. 3   Even if admissible, the affidavit does little to suggest that a
disputed fact exists as to Yenni’s conduct. Nor does any of the other evidence
presented by Metzler.        Metzler has failed to respond to the Defendants’
showing with competent summary judgment evidence demonstrating disputed
issues of fact as to Yenni’s conduct.


       3See FED. R. CIV. P. 56(c); FED. R. EVID. 802; see also Okoye v. Univ. of Tex. Hous.
Health Sci. Ctr., 245 F.3d 507, 510 n.5 (5th Cir. 2001) (“Because these statements are
hearsay, they are not competent summary judgment evidence.”).
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                                          No. 16-31157
        We also affirm the district court’s grant of summary judgment to the
defendants on Metzler’s claims against the City of Kenner. “If the defendant
is a municipality or other body of local government, the alleged deprivation
must be connected to ‘a government custom,’ ‘policy statement, ordinance,
regulation, or decision officially adopted and promulgated by the body’s
officers.’” 4 Although “municipal liability may be imposed for a single decision
by municipal policymakers under appropriate circumstances,” 5 such as the
termination decision here, 6 that action must nonetheless be “taken by an
official with ‘final policymaking authority’ in that area.” 7 Whether a person
has such authority is a question of state and local law. 8 Assuming, as the
district court did, that Yenni instructed that Metzler be terminated, Yenni is
not the final policymaker, as evidenced by the Kenner Civil Service Board’s
subsequent reinstatement of Metzler. 9 Thus, Metzler’s claim must fail.
                                      *        *         *
       We AFFIRM the judgment of the district court for the reasons
articulated in its opinion.




       4  Jones v. Lowndes County, 678 F.3d 344, 349 (5th Cir. 2012) (quoting Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 690-91 (1978)).
        5 Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).
        6 See Jett v. Dall. Indep. Sch. Dist., 798 F.2d 748, 759 (5th Cir. 1986) (citing Neubauer

v. City of McAllen, 766 F.2d 1567, 1573-74 (5th Cir. 1985)).
        7 Jones, 678 F.3d at 349-50 (quoting Pembaur, 475 U.S. at 483).
        8 Pembaur, 475 U.S. at 483; Valle v. City of Houston, 613 F.3d 536, 542 (5th Cir. 2010).
        9 See Advanced Tech. Bldg. Sols., L.L.C. v. City of Jackson, 817 F.3d 163, 167 (5th Cir.

2016) (“Because the council has the right of final review, it is the final policymaker. This
conclusion is consistent with cases in which we have found reviewability by another political
body ‘relevant to showing that an official is not a final policymaker.’” (quoting Bolton v. City
of Dallas, 541 F.3d 545, 550 n.4 (5th Cir. 2008))).
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