     Case: 12-31061       Document: 00512351303         Page: 1    Date Filed: 08/22/2013




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

                                                                           FILED
                                                                         August 22, 2013

                                    No. 12-31061                          Lyle W. Cayce
                                  Summary Calendar                             Clerk



S. J. BEAULIEU, JR., Chapter 13 Trustee,

                                                  Plaintiff-Appellant
v.

JAMES LAVIGNE, Mayor, individually and in his official capacity;
BENJAMIN RAYNOR, Chief of Police, individually and in his official
capacity; PEARL RIVER TOWN,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CV-2816


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant S. J. Beaulieu, Jr. is the Chapter 13 Trustee of Edward
J. Haisch (“Haisch”), the original plaintiff in this case. Haisch filed suit under
42 U.S.C. § 1983 against Defendants-Appellees James Lavigne (“Lavigne”),
Mayor of Pearl River; Benjamin Raynor (“Raynor”), Pearl River’s Chief of Police;
and the Town of Pearl River (“Pearl River”). Haisch claimed that his termination

       *
        Pursuant to 5TH CIRCUIT RULE 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should not be published and is not precedent except under the limited circumstances set forth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 CIRCUIT RULE 47.5.4.
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                                  No. 12-31061

from the Pearl River Police Department violated his First Amendment right to
be free from retaliation for engaging in protected campaign speech. The District
Court granted summary judgment in favor of the defendants. We AFFIRM.
                     I.   Facts and Procedural History
      In 1995, Pearl River Police Department Chief Raynor hired Haisch as a
reserve police officer. Haisch became a full time officer in 1998. He was
terminated in 2003 for failing to secure warrants for a case. In 2004, he asked
Raynor to rehire him, and Raynor did so one month later, in June 2004, as a full-
time parol officer. By 2008, Haisch had been promoted to sergeant and served
as the School Resource Officer at Pearl River High School. In 2009, Haisch
decided to run against Raynor for the elected position of Chief of Police.
      According to the written policies of the Pearl River Police Department,
employees were required to resign their position with the department prior to
announcing their candidacy for political office in Pearl River. R. 467. On June
30, 2010, Haisch requested an unpaid leave of absence in order to campaign.
Chief Raynor denied the request and informed Haisch of the police department
policy requiring employees to resign prior to announcing their candidacy for
political office in Pearl River. Haisch voluntarily resigned on July 5, 2010. His
Separation Notice stated that he “resigned to seek political office.” Haisch lost
the election during the first primary election on October 2, 2010. Raynor won the
subsequent run-off election against another candidate on November 6, 2010.
After the election, Chief Raynor rehired Haisch on November 8, 2010, and
Haisch resumed his former position, rank, and salary.
      Pursuant to a Town Council ordinance passed in 1982, Raynor had the
authority to hire and fire police officers at his discretion, subject to budgetary
restrictions. In early 2011, Pearl River faced budget problems, and Lavigne and
the Town Council informed Raynor that he would have to reduce his police force.
Chief Raynor terminated Haisch because he was the most recent officer to be

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                                  No. 12-31061

hired by the department. On April 29, 2011, Haisch received a Separation Notice
that stated that he was “Laid off Due to Town Budget Issues.” Shortly
thereafter, the Town Council found sufficient funds for an additional officer and
Raynor rehired Haisch on June 1, 2011. Pearl River continued to experience a
budget shortfall, however, and as a result Raynor terminated Haisch’s
employment again on September 23, 2011. Haisch’s Separation Notice explained
that the reason for his termination was “Reduction in Force, Laid off due to
Town Budget issues.”
      On November 11, 2011, Haisch filed the present suit against the
defendants, asserting a First Amendment retaliation claim pursuant to 42
U.S.C. § 1983. Haisch claimed that defendants conspired together to fire Haisch
in retaliation for his discussion of public issues during his political campaign,
including his assertion in a public interview that Raynor employed an
“intimidating style” of law enforcement. He claimed that Raynor’s stated reason
for Haisch’s termination was merely pretextual. On July 27, 2012, defendants
filed a motion for summary judgment, asserting that Raynor and Lavigne were
entitled to qualified immunity and that Haisch had not established all the
elements of a viable retaliation claim. The District Court granted the motion for
summary judgment and dismissed the suit, finding that Raynor and Lavigne
were entitled to qualified immunity and that Haisch had not alleged the
elements necessary to state a claim against Pearl River. Haisch now appeals.
                          II.   Standard of Review
      “We review a district court’s order granting summary judgment de novo.”
McMurray v. ProCollect, Inc., 687 F.3d 665, 669 (5th Cir. 2012). Summary
judgment is appropriate only if the record shows that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “Only disputes over facts that might affect
the outcome of the suit under the governing law will properly preclude entry of

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summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In reviewing a grant of summary judgment, we examine the evidence in the light
most favorable to the nonmoving party. Addicks Servs., Inc. v. GGP-Bridgeland,
LP, 596 F.3d 286, 293 (5th Cir. 2010). While “any reasonable inferences are to
be drawn in favor of [the nonmoving] party,” Gowesky v. Singing River Hosp.
Sys., 321 F.3d 503, 507 (5th Cir. 2003), conclusory allegations and
unsubstantiated assertions alone are insufficient to defeat summary judgment.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
                                III.   Analysis
          A. Dismissal of Claims Against Raynor and Lavigne
      Haisch appeals from the district court’s grant of summary judgment to
Raynor and Lavigne on the basis of qualified immunity. “Qualified immunity
protects public officers from suit if their conduct does not violate any ‘clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” Bishop v. Arcuri, 674 F.3d 456, 460 (5th Cir. 2012) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “When a defendant invokes
qualified immunity, the burden shifts to the plaintiff to demonstrate the
inapplicability of the defense.” Club Retro, LLC v. Hilton, 568 F.3d 181, 194 (5th
Cir. 2009) (citing McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir.
2002) (en banc)). At the summary judgment stage of litigation, the plaintiff must
present sufficient evidence to create a genuine dispute of material fact regarding
both prongs of the two-prong qualified immunity test. First, he must present
evidence that “the facts alleged show the [government official’s] conduct violated
a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). Second, he
must demonstrate that the right “was clearly established.” Id. Courts “have
discretion to decide which of the two prongs of qualified-immunity analysis to
tackle first.” Ashcroft v. Al-Kidd, 131 S.Ct. 2074, 2080 (2011) (citing Pearson v.



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Callahan, 555 U.S. 223, 236 (2009)). Because we conclude that Haisch failed to
satisfy the first prong, we need not reach the second prong of the analysis.
      Haisch contends that his First Amendment rights were violated when he
was terminated from his position as a Pearl River police officer allegedly because
he engaged in protected speech while running against Raynor for the elected
position of police chief. “The government may not constitutionally compel
persons to relinquish their First Amendment rights as a condition of public
employment.” Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220 (5th Cir.
1999). To prove a First Amendment retaliation claim in the employment context,
a plaintiff must establish that: “(1) the plaintiff suffered an adverse employment
decision, (2) the plaintiff’s speech involved a matter of public concern, (3) the
plaintiff’s interest in speaking outweighed the governmental defendant’s interest
in promoting efficiency, and (4) the protected speech motivated the defendant’s
conduct.” Kinney v. Weaver, 367 F.3d 337, 356 (5th Cir. 2004) (en banc) (citing
Lukan v. N. Forest ISD, 183 F.3d 342, 346 (5th Cir. 1999)).
      Haisch satisfied the first three prongs. His termination constitutes an
adverse employment decision. See Juarez v. Aguilar, 666 F.3d 325, 332 (5th Cir.
2011). His run for public office and associated campaign activities involved
matters of public concern. See Jordan v. Ector County, 516 F.3d 290, 297 (5th
Cir. 2008). Nor could his speech have affected the government’s efficiency
because he was not an employee of the Pearl River Police Department at the
time. However, Haisch was not able to produce evidence that his protected
speech motivated Raynor’s decision to terminate his employment. Haisch’s
Separation Notices stated that he was laid off due to budget issues. Haisch
testified in his deposition that he was aware of the town’s budget concerns. He
also testified that he was never reprimanded for running for Chief of Police,
never had any confrontations with Raynor about the election, and had never
spoken with Lavigne. Haisch did not put forth any evidence that Lavigne was

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involved in the decision to terminate Haisch’s employment, and did not dispute
the defendants’ evidence that Raynor had discretion to hire and fire employees.
It is undisputed that Raynor rehired Haisch at Haisch’s request immediately
after Raynor was reelected as Chief of Police, at the same position, salary, and
rank Haisch had prior to voluntarily resigning his position to campaign. It also
is undisputed that Raynor again rehired Haisch after his April 29, 2011
termination, as soon as funds became available. Raynor testified that he
terminated Haisch because he was the most recent hire and therefore lacked
seniority. Haisch did not present any evidence to dispute this. His assertion of
pretext is merely an unsubstantiated assertion that does not demonstrate a
genuine issue of material fact. See Little, 37 F.3d at 1075. Because Haisch was
unable to produce evidence that his protected speech motivated Raynor’s
decision to terminate him and was unable to produce any evidence that Lavigne
was involved in the decision to terminate his employment, he failed to
demonstrate that either Raynor or Lavigne violated his First Amendment rights.
Therefore, the district court did not err in granting summary judgment in favor
of Raynor and Lavigne on the basis of qualified immunity.
                B. Dismissal of Claim Against Pearl River
      Haisch also appealed the district court’s grant of summary judgment in
favor of Pearl River. Haisch alleged that Pearl River conspired with Raynor and
Lavigne to retaliate against him for engaging in protected speech during his
campaign. “Cities are not liable for constitutional violations committed by city
employees unless those violations result directly from a municipal custom or
policy. Liability under the doctrine of respondeat superior is not cognizable in
§ 1983 actions.” Sanders-Burns v. City of Plano, 594 F.3d 366, 380 (5th Cir.
2010) (citations omitted). “[M]unicipal liability under section 1983 requires proof
of three elements: a policymaker; an official policy; and a violation of
constitutional rights whose ‘moving force’ is the policy or custom.” Piotrowski v.

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City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell v. Dep’t of
Social Servs., 436 U.S. 658, 694 (1978)). “[W]ithout an underlying constitutional
violation, an essential element of municipal liability is missing.” Doe ex rel
Magee v. Covington County Sch. Dist. ex rel Keys, 675 F.3d 849, 866-67 (5th Cir.
2012) (en banc). Furthermore, “[t]he description of a policy or custom and its
relationship to the underlying constitutional violation . . . cannot be conclusory;
it must contain specific facts.” Spiller v. City of Texas City, Police Dept., 130 F.3d
162, 167 (5th Cir. 1997).
      As already discussed, Haisch did not present evidence of an underlying
constitutional violation. Namely, he failed to demonstrate that there is a genuine
issue of material fact as to whether his protected speech motivated the
defendant’s conduct. See Kinney, 367 F.3d at 356. Haisch presented no evidence
that he was terminated in retaliation for engaging in protected speech, or for any
reason other than budget concerns. Moreover, Haisch did not identify a specific
policy that served as the moving force behind the alleged underlying
constitutional violation. Therefore, Haisch’s claim against Pearl River was
properly dismissed.
                                 IV. Conclusion
      For the foregoing reasons, the judgment of the District Court is
AFFIRMED.




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