     Case: 11-20374    Document: 00511716805         Page: 1    Date Filed: 01/06/2012




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

                                                                          FILED
                                                                        January 6, 2012

                                    No. 11-20374                         Lyle W. Cayce
                                  Summary Calendar                            Clerk



KATHERINE A. SWILLEY,

                                                 Plaintiff - Appellant

v.

CITY OF HOUSTON; ACTING CHIEF CHARLES MCCLELLAND, JR., also
known as McClelland,

                                                 Defendants - Appellees



                  Appeal from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:09-CV-2995


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Katherine A. Swilley (“Swilley”) appeals the district court’s grant of
summary judgment in favor of the City of Houston, Texas (“Houston”), and
Charles McClelland, Jr. (“McClelland”), the acting Houston Chief of Police.
Before us are Swilley’s claims of gender discrimination, retaliation, § 1983
constitutional due process, equal protection, and free speech violations, and

       *
        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not be published and is not precedent except under the limited circumstances set forth in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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§ 1985 conspiracy violation against Houston and McClelland, for actions
surrounding Swilley’s termination from her position as a Senior Police Officer
with the Houston Police Department’s Public Affairs Division.
      The district court correctly summarized the facts leading to Swilley’s
termination. Swilley founded Texas Cops & Kids, Inc., a nonprofit crime
prevention program for children. In the spring of 2006, then-Houston Chief of
Police Harold Hurtt became aware of Swilley’s program, and based on her work,
thought Swilley could implement a program similar to one Hurtt had
implemented during his prior service with the Phoenix, Arizona police
department. She was subsequently assigned to the Public Affairs Department
to initiate Chief Hurtt’s Kids at Hope program.1 Hurtt originally believed
Swilley’s Texas Cops & Kids program was an official Houston Police Department
program, which in fact it was not. Instead, it was a non-profit entity not
affiliated with the Houston Police Department despite Swilley’s publicity of the
program in her official Houston Police Department uniform.
      Once in her new position, Swilley repeatedly refused to follow her chain
of command and insisted that she worked directly for the Chief, which was not
true. In March 2007, in light of Swilley’s failure to follow her chain of command
and Chief Hurtt’s realization that Texas Cops & Kids was likely not an official
Department program, the Chief requested Swilley’s supervisors meet with
Swilley to better understand her involvement with Texas Cops & Kids. Instead
of cooperating with her supervisors, Swilley become argumentative and defiant,
questioned her supervisors’ motives, and indicated she would continue to violate
Department policy. Swilley’s supervising lieutenant then filed a complaint of



      1
        Acting Houston Chief of Police McClelland has been substituted in this suit
following Chief Hurtt’s resignation in December 2009.

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insubordination with the Department’s Internal Affairs Department (“IAD”).
      At approximately the same time in March, Swilley met with Chief Hurtt
to report acts of discrimination against her. On June 26, 2007, Swilley filed a
complaint with the Equal Employment Opportunity Commission (“EEOC”)
alleging gender discrimination and retaliation. Meanwhile, IAD conducted a
criminal investigation involving grant money intended for the Kids at Hope
program.
      At the conclusion of the IAD’s investigation in September 2007, the
Department conducted a Loudermill hearing2 where Chief Hurtt presented
Swilley with charges of untruthfulness, insubordination, and violating a policy
regarding outside employment. Swilley was represented by counsel at the
hearing. Following the hearing, Swilley signed a waiver to relinquish the claims
in her EEOC complaint.            In the waiver, Swilley accepted a fifteen-day
suspension and agreed not to appeal it in exchange for the dismissal of a
misconduct charge that could have resulted in her termination.
      Despite signing the waiver, Swilley, with the assistance of counsel,
submitted another letter to Chief Hurtt approximately a month later,
complaining that her original discrimination and retaliation claims had not been
investigated, that she had signed the waiver under duress, and that she no
longer intended to abide by her commitments in the waiver.
      The IAD commenced a second investigation regarding Swilley’s
discrimination and retaliation claims.            The investigators were unable to
corroborate any of Swilley’s claims of unequal or preferential treatment of male
officers that were the basis of her discrimination and retaliation claims. The
final 74-page IAD report also detailed additional policy violations by Swilley,


      2
          Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).

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including additional instances of untruthfulness and a failure to respect her
supervising officers.    It was recommended to Chief Hurtt that Swilley be
terminated.
      A second Loudermill hearing was conducted in March 2008. Swilley was
represented by counsel and attended the hearing. Following the hearing, on
March 14, 2008, Swilley’s employment with the Department was terminated.
She then appealed her termination to an independent hearing examiner as
permitted under Texas law. At the appeal, Swilley was represented by counsel
and received a full hearing, complete with fourteen witnesses and where she
introduced twenty-one exhibits. Swilley admitted at the hearing that she had
been untruthful about a variety of her statements in the 2007 and 2008
investigations. The hearing examiner affirmed Chief Hurtt’s termination of
Swilley.
      Swilley then filed this lawsuit alleging gender discrimination, retaliation,
various constitutional violations, and a conspiracy on the part of the police
department. Following a protracted pre-trial period that included five different
attorneys making an appearance on behalf of Swilley, numerous discovery
issues, and three extensions to discovery deadlines, the district court granted
summary judgment to Houston and McClelland (substituted for Chief Hurtt ) on
all claims in April 2011.
      Swilley timely filed her notice of appeal. However, in addition to her
notice of appeal, Swilley also filed in the district court, successively: (1) a Motion
for Relief from Judgment supported by 594 pages of documents, (2) a
Memorandum in Further Support of her Motion for Relief from Judgment with
exhibits, (3) a Third Rule 60(b) Motion for Relief from Judgment with exhibits,
(4) a Supplement to Rule 60 Motion with exhibits, and (5) a Second Supplement
to Third Rule 60 Motion with exhibits. Swilley challenges all of the district

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court’s findings on summary judgment, arguing that the five hundred plus pages
of documents she submitted with her opposition to summary judgment, along
with the additional five hundred plus pages she submitted in her post-judgment
motions contain enough facts to generate genuine issues of material facts on her
allegations.
      “We review the district court’s grant of summary judgment de novo.”
Fahim v. Marriot Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008). Summary
judgment is appropriate only “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of
law.” Id. In determining whether a genuine issue as to any material fact exists,
we view the evidence in the light most favorable to the nonmoving party.
Berquist v. Washington Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007).
      For the following reasons, we affirm the district court’s grant of summary
judgment.
      1. To make out a prima facie case of discrimination, Swilley must show
      that she: (1) is a member of a protected group; (2) was qualified for the
      position at issue; (3) was discharged or suffered some adverse employment
      action by the employer; and (4) was treated less favorably than other
      similarly situated employees outside the protected group. McCoy v. City
      of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). As explained by the
      district court, Swilley was not qualified for the position at issue because
      she was affirmatively unwilling to comply with the basic organizational
      mandate for her position. Swilley does not contend she was qualified for
      her position nor does she offer any evidence that she was qualified for the
      position. Accordingly, Swilley’s discrimination claim is without merit.


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   2. To establish a prima facie case of retaliation, Swilley must establish
   that: (1) she participated in an activity protected by Title VII; (2) her
   employer took an adverse employment action against her; and (3) a causal
   connection exists between the protected activity and the adverse
   employment action. Id. at 556–57. If Swilley makes a prima facie
   showing, the burden shifts to Houston to articulate a legitimate,
   nonretaliatory reason for its employment action. This burden is only one
   of production, not persuasion. If Houston meets its burden of production,
   Swilley bears the ultimate burden of proving that Houston’s proffered
   reason is not true but instead is a pretext for the real discriminatory or
   retaliatory purpose. Id. at 557. Even if we assume Swilley can establish
   a prima facie case of retaliation, Houston’s stated nonretaliatory reason
   for her termination was untruthfulness. Swilley has not proven that
   untruthfulness was simply a pretext for her termination. Quite the
   opposite—she admitted at her post-termination appeal hearing that she
   had been untruthful about a variety of her statements in the 2007 and
   2008 investigations. The district court’s grant of summary judgment on
   Swilley’s retaliation claim was therefore correct.


   3. To establish a § 1983 claim for a violation of constitutional rights by a
   municipality, Swilley must prove three elements: “a policymaker; an
   official policy; and a violation of constitutional rights whose ‘moving force’
   is the policy or custom.” Piotrowski v. City of Houston, 237 F.3d 567, 578
   (5th Cir. 2001). Swilley alleges violations of her Fourteenth Amendment
   due process and equal protection rights and a violation of her First
   Amendment right by Houston’s alleged retaliation against her following
   her protected speech. Swilley’s due process claim fails because she was

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   provided two-pre-termination Loudermill hearings at which she was
   represented by counsel and a post-termination hearing where she was
   again represented by counsel. She has failed to offer proof of any of the
   three elements of a § 1983 due process claim. Similarly, Swilley has
   offered only vague allegations that similarly situated persons outside of
   her class were treated differently and has therefore not shown an official
   policy to violate her equal protection rights. Lastly, her First Amendment
   retaliation claim must fail in conjunction with her Title VII retaliation
   claim discussed above. “When a § 1983 claim is used as a parallel to a Title
   VII claim under a given set of facts, the elements required to be
   established for each claim are deemed the same under both statutes.”
   Merwine v. Bd. of Trs. for State Insts. of Higher Learning, 754 F.2d 631,
   635 n.3 (5th Cir. 1985).


   4. Swilley’s claim for a conspiracy under 42 U.S.C. § 1985 fails for two
   reasons.      First, Swilley concedes she has not presented evidence
   establishing an alleged conspiracy to prevent her from presenting an
   effective case in federal court. Second, the only opposing parties in this
   suit are the City of Houston and its employees. The City of Houston is a
   single legal entity and, as a matter of law, its employees cannot conspire
   among themselves. Benningfield v. City of Houston, 157 F.3d 369, 378
   (5th Cir. 1998).


   5. The district court did not err when it denied Swilley’s motion for
   continuance on the day that her opposition to Houston’s motion for
   summary judgment was due.          This court examines the denial of a
   continuance by considering whether the district judge acted within his

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   discretion knowing what he knew at the time of his denial. United States
   v. Medina-Arellano, 569 F.2d 349, 354 (5th Cir. 1978). Here, there was no
   prejudice to Swilley because, despite asking for a continuance on the day
   her summary judgment opposition was due, she still filed a voluminous
   opposition that was over 100 pages in length, supported by four
   declarations and forty-four exhibits. Altogether, Swilley filed 567 pages
   of documents in support of her opposition to summary judgment. It is not
   clear what more Swilley could have expected to file and we hold that the
   district court did not abuse its discretion in denying a continuance.


   6. This court does not have jurisdiction to consider the district court’s
   denial of Swilley’s multiple Rule 60(b) motions following its entry of
   summary judgment in favor of Houston. Swilley’s May 11, 2011 Notice of
   Appeal is limited to the district court’s April 11, 2011 Final Judgment
   Order with respect to its summary judgment decision. No additional
   amended notices of appeal regarding the motions for reconsideration were
   filed and therefore the denial of those motions is not properly before this
   court. See FED. R. APP. P. 4(a)(4)(B)(ii) (“A party intending to challenge an
   order disposing of [a Rule 60 motion] must file . . . an amended notice of
   appeal. . . .”); Funk v. Stryker Corp., 631 F.3d 777, 781 (5th Cir. 2011) (“An
   appellant must amend his notice of appeal to challenge orders subsequent
   to the final judgment.”).
   AFFIRMED.




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