     Case: 14-20292    Document: 00513029914      Page: 1   Date Filed: 05/04/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                  No. 14-20292                    United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
PETER J. PASKE, JR.,                                                  May 4, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellant                                       Clerk

v.

JOEL FITZGERALD, Individually and in his Capacity as Chief of Police of
the City of Missouri, Texas; THE CITY OF MISSOURI CITY, TEXAS,

             Defendants - Appellees




                 Appeal from the United States District Court
                      for the Southern District of Texas


Before DAVIS, JONES, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Plaintiff-appellant Peter J. Paske (“Paske”) appeals the district court’s
grant of summary judgment to defendants-appellees Joel Fitzgerald
(“Fitzgerald”) and the City of Missouri City, Texas (the “City”) (collectively, the
“Government”). For the reasons explained below, we AFFIRM the judgment of
the district court.
                           FACTS AND PROCEEDINGS
      Paske served as a sergeant in the Missouri City Police Department (the
“Department”). Paske is white. In 2009 the City hired Fitzgerald to serve as
chief of police. Fitzgerald is black. After Fitzgerald’s arrival, two captain
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positions became available. Paske interviewed for the positions, but Fitzgerald
chose two other candidates. As relevant here, Fitzgerald hired Geneane
Merritt (“Merritt”) to fill one of the positions. Merritt is black. Paske and
Merritt had various run-ins over the next two years. See Paske v. Fitzgerald,
No. H-12-2915, 2014 WL 1366552, at *1 (S.D. Tex. Apr. 7, 2014). This growing
tension came to a head over events that occurred in July 2011.
      On July 11, 2011, Merritt sent an e-mail to Fitzgerald requesting funeral
leave so that she could attend her grandmother’s funeral in Philadelphia. She
told Fitzgerald that “the Funeral [was] going to be on Friday, July 15, 2011,”
and that she was “hoping to leave to travel on Wednesday, July 13, 2011.” The
Department approved her request. On July 14, officers observed Merritt’s city-
issued car being driven around town. The Department dispatched two officers
to Merritt’s house to investigate. Merritt’s mother answered the door. She told
the officers that Merritt’s daughter had taken Merritt to the airport earlier in
the day, and that Merritt “was in Philadelphia for [the] funeral.” The officers
asked Merritt’s mother for the keys to the city-issued car so they could return
it to the Department. The officers were waiting at the door while Merritt’s
mother purported to search for the keys when Merritt herself appeared. The
officers questioned Merritt about her mother’s false statements. Merritt
responded that “there [were] a lot of kids in the house and she must have
got[ten] confused.” The next day, July 15, Fitzgerald e-mailed the city
manager, informing him that “there [was] some question whether [Merritt]
misled us regarding a request for time off.” Fitzgerald promised that the issue
would be “thoroughly investigated.”
      The “thorough investigation” promised by Fitzgerald turned out to be
nothing more than a generous interpretation of the Department’s funeral leave
policy. At the time, the policy stated that City officials could “grant a regular,
full-time employee paid emergency leave in the event of a death within the
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                                      No. 14-20292
employee’s immediate family or household,” and that “[n]ormally, a one to
three       day   absence    should   be   sufficient   depending     upon    individual
circumstances, such as location of the funeral and closeness of the
relationship.” Fitzgerald testified that, because “it wasn’t specified” in the
policy “that [Merritt] had to leave town,” he determined that she had not
violated the policy. Assistant Chief Keith Jemison (“Jemison”) admitted that
“[t]here was no formal investigation,” while Fitzgerald confessed he never
investigated whether Merritt had meant to mislead him. It appears from the
record that Merritt never traveled to Philadelphia.
        Within a few days of the “investigation” into her request for funeral
leave, Merritt e-mailed Fitzgerald saying that she wanted to be demoted to
lieutenant. Merritt did not mention the funeral leave issue as a reason for her
request. Fitzgerald met with Merritt to discuss her request. He testified that
neither of them mentioned the funeral leave issue because “[t]hat didn’t factor
in.” At around the same time, rumors began circulating that Merritt had lied
to obtain funeral leave, and that Fitzgerald was allowing her to take a
voluntary demotion in lieu of formal discipline.
        On July 20, the Department held a COMPSTAT Meeting 1 with all
officers, followed by a Supervisor Meeting with only higher ranking officers. At
the time, Fitzgerald was considering a proposal to require all officers with the
rank of lieutenant or higher to wear white shirts. Paske asked Fitzgerald
whether he had reached a decision and quipped that only “firemen, milk[men,]




        1 COMPSTAT meetings are modeled after a program pioneered by Police
Commissioner William Bratton during his first term with the New York City Police
Department. In the New York model, precinct commanders are expected to “appear before
the department’s top echelon to report on crime in their districts and what they are doing
about it.” James J. Willis, Stephen D. Mastrofski & David Weisburd, Making Sense of
COMPSTAT: A Theory-Based Analysis of Organizational Change in Three Police
Departments, 41 LAW & SOC’Y REV. 147, 147-48 (2007).
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and Klansmen wear white in Texas.” Paske averred that Fitzgerald “only
smil[ed]” and said he would be make a decision soon. Fitzgerald then opened
the floor for questions. It was typical for supervisory officers to “air their
complaints or their concerns” during this time, usually about “reports not being
checked” or “operational issues.” Paske asked whether “she was getting
demoted and was he getting promoted,” gesturing to Merritt and the officer
rumored to be her replacement as captain. 2 At that point, “Fitzgerald’s face
turned red[,] and he hesitated for a second,” but he confirmed that Merritt was
taking a voluntary demotion. A few moments later, Fitzgerald asked Paske
“why [he had] not been the proctor for the [COMPSTAT Meeting]” and accused
Paske of failing to obey an order issued several months before to lead the
COMPSTAT Meetings. 3
       After the Supervisor Meeting, Paske sent Fitzgerald an e-mail
apologizing for his “lack of respect at the [COMPSTAT] meeting.” A few hours
later, Fitzgerald sent an e-mail to the Department’s supervisory officers with
the suggestive subject line “COMPSTAT meeting outburst.” Fitzgerald
announced Paske’s suspension pending an investigation and commanded those
present at the Supervisor Meeting to “ensure you each provide . . . Jemison
individual memos specifically regarding . . . Paske’s questions, demeanor, and


       2 The Department later determined that Paske’s reference to his superior officers as
“she” and “he” was disrespectful and violated the Department’s policies.
       3 In May 2011, Paske volunteered to lead upcoming COMPSTAT Meetings. Paske

believed his agreement to lead COMPSTAT Meetings was contingent on his agreement to fill
a special operations role, which he later chose not to take on. Captain John Bailey (“Bailey”)
was the officer generally responsible for leading COMPSTAT Meetings during the relevant
time period. He averred that there was some discussion in May 2011 about Paske co-leading
the June 2011 COMPSTAT meeting, but that he later heard Paske was going to be out-of-
town on the date of the June meeting. Bailey stated that before the July meeting, no one
suggested that Paske was supposed to lead the meeting, even when he sent e-mails to
Fitzgerald and others making clear that he would lead the meeting as usual. Bailey further
averred that the July 2011 meeting “went forward as usual,” and that “[n]obody, not Chief
Fitzgerald and not anyone else, ever once asked why Sgt. Paske was not at the front of the
room running the meeting. Nothing unusual happened in the meeting.”
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                                     No. 14-20292
statements, made to me and/or anyone during the COMPSTAT meeting today.”
He urged the officers to “be as specific as possible.”
      On July 21, the Department officially charged Paske with disobeying
orders and using inappropriate language and suspended him during the
investigation. A week later, Fitzgerald called Paske to a meeting (the
“Punishment Meeting”). Fitzgerald informed him that he was adopting the
investigator’s recommendation and imposing an 80-hour suspension without
pay. Fitzgerald also went above the investigator’s recommendation and
demoted Paske to “patrol” with a commensurate decrease in salary. Due to his
relocation in the Department’s command structure, when Paske returned to
work after his suspension, he reported to Merritt.
      Almost     immediately      after    Paske’s    return,    Merritt    imposed     a
“Performance Improvement Plan” (“PIP”) on him, this time for his allegedly
“unacceptable behavior” during the Punishment Meeting. The official notice
stated that, during the Punishment Meeting, Paske “became visibly tense, [his]
face became red, [he] tightened [his] body and fists, and began shaking [his]
legs.” It further charged that he “began to stare off to the left while shaking
[his] head.” 4 As part of the PIP, the Department ordered Paske to undergo a
vocational evaluation, which the parties refer to as an employee assistance
program (“EAP”).
      The EAP sessions were coordinated by a team of vocational experts.
Those experts referred their cases to third-party counselors who actually
conducted the sessions. A high-ranking officer in the Department called the
EAP coordinator and characterized Paske’s alleged behavior during the
Punishment Meeting as threatening. After Paske told the third-party


      4 Officer Paske provided testimony contradicting these allegations. We mention these
charges to explain the rationale the Department adopted for imposing the PIP, not because
we accept their veracity.
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                                     No. 14-20292
counselor during his first EAP session that he had lost weight and struggled
with his blood pressure, the EAP coordinator reviewing Paske’s file
recommended to the counselor that Paske be tested for drug use. The counselor
resisted ordering a drug test. A short time later, a high-ranking officer in the
Department called the EAP coordinator, this time alleging that Paske had lied
to the third-party counselor when he said he was taking a week’s vacation. 5
After receiving this additional information, the third-party counselor relented
and agreed to order Paske to undergo drug testing after the second EAP
counseling session. The Department arranged for the counselor to give Paske
a letter at the end of the session ordering him to report to the Department
immediately for testing.
      On the morning of the second EAP session, Paske had arranged for his
mother-in-law to care for his children. Before Paske left for the session, his
mother-in-law was hit by a car and seriously injured. Paske knew he was
already in trouble with Fitzgerald, so he decided to leave his infant with a
neighborhood acquaintance and his older children unattended at home while
he went to the second EAP session. He informed his direct supervisor of his
mother-in-law’s injury and asked him to inform higher-ups of the family
emergency. When the counselor informed Paske about the drug testing
requirement, he thought she would conduct the testing. The counselor testified
that Paske was willing to undergo testing. When he learned that the
Department would coordinate the testing, however, he told the counselor that
he feared they would falsify the results to justify his dismissal. After leaving
the EAP session, Paske called a high-ranking supervisor and told him about
his family emergency. Within a few minutes, Fitzgerald called Paske directly



      5It appears that Paske did not lie about vacation. The vacation time was pre-approved
by Paske’s immediate supervisors.
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                                       No. 14-20292
and ordered him to report to the Department within an hour. Paske told
Fitzgerald that he “could not” obey the order. Fitzgerald later testified that he
“knew when [he] decided not to go to the police department it was the wrong
decision.” Fitzgerald terminated Paske later that day.
      Paske sued the Government, asserting claims for: First Amendment
retaliation 6; Title VII race discrimination; Title VII race retaliation; and
related state law claims. The district court granted the Government’s motion
for summary judgment in part, dismissing all of Paske’s federal claims. The
district court severed Paske’s state law claims and, choosing not to exercise
supplemental jurisdiction, remanded them to state court. The district court
also granted the Government’s motion to exclude certain testimony offered by
Paske and Bailey. Paske appeals the district court’s evidentiary determination
and its dismissal of his federal claims.
                                 STANDARD OF REVIEW
      This court reviews a district court’s grant of summary judgment de novo.
Avakian v. Citibank, N.A., 773 F.3d 647, 650 (5th Cir. 2014). “In reviewing the
district court’s grant of summary judgment, we must view all the disputed facts
and reasonable inferences in a light most favorable to the non-movant. . . .”
Branton v. City of Dallas, 272 F.3d 730, 738-39 (5th Cir. 2001). We review a
district court’s decision to strike summary judgment evidence for an abuse of
discretion. See, e.g., Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). “An
abuse of discretion occurs only when all reasonable persons would reject the
view of the district court.” Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669
F.3d 632, 638 (5th Cir. 2012).




      6   The district court assumed that Paske brought this claim under 42 U.S.C. § 1983.
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                                       No. 14-20292
                                       DISCUSSION
                                              I.
       The district court granted the Government’s motion to strike evidence in
part, excluding portions of Paske and Bailey’s testimony. Paske generally
contends that his and Bailey’s statements are admissible under various rules
of evidence. Having considered the various statements and the relevant rules
of evidence, we agree with the district court that the statements lacked
foundation. See Paske, 2014 WL 1366552, at *5-6. It follows that Paske cannot
show that all reasonable persons would reject the district court’s decision to
strike the testimony.
       Accordingly, we affirm the district court’s decision to strike portions of
Paske and Bailey’s testimony.
                                              II.
       The district court dismissed Paske’s First Amendment retaliation claim.
It explained that Paske’s speech was “confined to his on-duty statements made
to superior officers within the department itself regarding the department’s
inner workings and urging [his] direct and implied complaints and criticisms
about Merritt and Chief Fitzgerald.” Id. at *8. Based on this view of the
uncontested evidence, the district court held that Paske spoke as an employee,
not as a citizen. Id. We affirm for the same reason.
                                              A.
       To establish a prima facie First Amendment retaliation claim, a public
employee must show, inter alia, that he spoke as a citizen, and not as a public
employee. See Lane v. Franks, 134 S. Ct. 2369, 2378-80 (2014). 7 In deciding


       7  Lane did not alter the test established in Garcetti v. Ceballos, 547 U.S. 410 (2006).
See Graziosi v. City of Greenville, Miss., 775 F.3d 731, 737 n.7 (5th Cir. 2015). The
Government submitted a letter brief pursuant to Federal Rule of Appellate Procedure 28(j).
It cited Graziosi and Gibson v. Kilpatrick, 773 F.3d 661 (5th Cir. 2014), and stated that these
cases “provide additional authority in support of Appellees’ position.” We remind counsel that
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                                      No. 14-20292
whether a public employee speaks as a citizen or as a public employee, “[t]he
critical question . . . is whether the speech at issue is itself ordinarily within
the scope of an employee’s duties, not whether it merely concerns those duties.”
Lane, 134 S. Ct. at 2379. When speech-related “[a]ctivities [are] required by
one’s position or undertaken in the course of performing one’s job[ ],” they are
within the scope of the employee’s duties. Haverda v. Hays County, 723 F.3d
586, 598 (5th Cir. 2013). In contrast, if the speech-related activities are “the
kind . . . engaged in by citizens who do not work for the government,” they are
protected. Garcetti, 547 U.S. at 423.
                                             B.
       Paske was invited to the Supervisor Meeting in his role as a police officer,
his attendance was part of his job, and he spoke in response to an invitation
from Fitzgerald for job-related questions. Moreover, by participating in
internal discussions about the Department’s operations, Paske “contribut[ed]
to the formation and execution of official policy.” Mills v. City of Evansville,
Ind., 452 F.3d 646, 647-48 (7th Cir. 2006) (holding that on-duty, in-uniform
police officer who spoke to senior managers as they emerged from meeting
spoke in her capacity as a public employee), cited with approval in Williams v.
Dall. Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir. 2007). We also note that
private citizens do not generally have the right to participate in closed-door
meetings of ranking police officers. Considering the facts as demonstrated by
the record as a whole, the district court did not err when it held that Paske
spoke at the Supervisor Meeting as an employee, not a citizen, and that his
speech was thus not protected by the First Amendment.




Rule 28(j) briefs “must state the reasons for the supplemental citations, referring either to
the page of the brief or to a point argued orally.” Fed. R. App. P. 28(j).
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                                  No. 14-20292
      Accordingly, we affirm the judgment of the district court regarding
Paske’s First Amendment retaliation claim.
                                       III.
      The district court dismissed Paske’s Title VII race discrimination claim.
See 42 U.S.C. § 2000e-2(a)(1) (prohibiting race discrimination in employment).
The district court held that Paske failed to “present[ ] evidence sufficient to
raise a genuine issue of material fact that ‘he was treated less favorably
because of his [race] than were other similarly situated employees who were
not [white], under nearly identical circumstances.’” Paske, 2014 WL 1366552,
at *11 (second and third alterations in original) (quoting Lee v. Kan. City S. Ry.
Co., 574 F.3d 253, 259 (5th Cir. 2009)). We affirm for the same reason.
      Because Paske attempted to prove race discrimination through
circumstantial evidence, the McDonnell Douglas burden-shifting framework
governs his claim. See Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482
F.3d 408, 411-12 (5th Cir. 2007) (discussing modified McDonnell Douglas
framework used in this circuit). To establish his prima facie case, Paske must
show that
      (1) he is a member of a protected class, (2) he was qualified for the
      position at issue, (3) he was the subject of an adverse employment
      action, and (4) he was treated less favorably because of his
      membership in that protected class than were other similarly
      situated employees who were not members of the protected class,
      under nearly identical circumstances.

Lee, 574 F.3d at 259. Paske established the first three elements of his prima
facie race discrimination claim. To establish the fourth element, Paske was
required to show, inter alia, that his “conduct that drew the adverse
employment decision [was] ‘nearly identical’ to that of the proffered
comparator who allegedly drew dissimilar employment decisions.” Lee, 574



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                                        No. 14-20292
F.3d at 260 (quoting Perez v. Tex. Dep’t of Criminal Justice, Inst. Div., 395 F.3d
206, 213 (5th Cir. 2004)). 8
       Paske offers Merritt and another officer as comparators. Paske makes
various allegations concerning Merritt, including: that she lied about the hours
she worked for the City in early 2010; that she allowed her daughter’s friends,
who were known gang members, to stay at her house; that she was bad at her
job; and that she lied when she requested funeral leave. Paske contends that
the other officer: left his service revolver unsecured in his car, from which it
was stolen; failed to report the theft; and then carried an unapproved, personal
firearm while on duty. Paske was fired for failing to obey a lawful order, for
refusing the drug test, for dereliction of duty, and for conduct unbecoming an
officer. Even assuming Paske’s allegations about Merritt and the other officer
are true, 9 their behavior is not even close to being “nearly identical” to Paske’s.
       Because Paske failed to adduce evidence that a comparator was treated
more favorably under nearly identical circumstances, he failed to establish a
prima facie case of race discrimination. Accordingly, we affirm the judgment of
the district court regarding Paske’s race discrimination claim.




       8  Paske argues that he can establish the fourth element of his prima facie claim by
showing that Fitzgerald’s stated reasons for firing him were pretextual. That is not the law.
First, Paske must establish a prima facie case by pointing to an appropriate comparator.
Only then would Fitzgerald and the City have a duty to “offer an alternative non-
discriminatory explanation for the adverse employment action.” Id. at 259. And only after
they provided that explanation would the pretext issue become relevant. Id. The cases Paske
cites to support his misplaced pretext argument make abundantly clear that Paske must
prove a prima facie case as well as pretext to succeed. See, e.g., Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148 (2000) (explaining that “a plaintiff’s prima facie case, combined
with sufficient evidence to find that the employer’s asserted justification is false, may permit
the trier of fact to conclude that the employer unlawfully discriminated”) (emphasis added)).
        9 Some of Paske’s allegations regarding Merritt have never been addressed by a

factfinder and are not well-supported by the record.
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                                       IV.
      The district court dismissed Paske’s Title VII race retaliation claim. See
42 U.S.C. § 2000e-3(a) (prohibiting retaliation against those opposing unlawful
race discrimination). Paske argues that the Government never moved for
summary judgment on his Title VII race retaliation claim, and that the district
court granted the motion without giving him a chance to respond. The
Government contends that any error was harmless.
      “We review for harmless error a district court’s improper entry of
summary judgment sua sponte without notice.” Atkins v. Salazar, 677 F.3d
667, 678 (5th Cir. 2011). “A district court’s grant of summary judgment sua
sponte is ‘considered harmless if the nonmovant has no additional evidence or
if all of the nonmovant’s additional evidence is reviewed by the appellate court
and none of the evidence presents a genuine issue of material fact.’” Id.
(quoting Leatherman v. Tarrant Cnty. Narcotics Intel. & Coord. Unit, 28 F.3d
1388, 1398 (5th Cir. 1994)).
      According to Paske’s own recollection of the Supervisor Meeting, he
asked Fitzgerald simply whether “she was getting demoted and was he getting
promoted.” Besides Paske’s own racially charged reference to “Klansmen”
during the Supervisor Meeting, there is no evidence in the record that Paske
spoke out about race discrimination. This court “ha[s] consistently held that a
vague complaint, without any reference to an unlawful employment practice
under Title VII, does not constitute protected activity.” Davis v. Dall. Indep.
Sch. Dist., 448 F. App’x 485, 493 (5th Cir. 2011) (per curiam) (collecting cases).
Just as in Davis, “[t]he only racial component of the entire . . . interaction was
interjected by [Paske] [him]self,” id., when he referred to “Klansmen.” Paske




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                                      No. 14-20292
“cannot rely upon [his] own use of a racially sensitive word to demonstrate that
[his] accusation had racial overtones.” Id. 10
         We assume that the district court dismissed Paske’s race retaliation
claim sua sponte and without notice. Even so, we hold that the district court’s
dismissal was harmless and affirm the district court’s judgment.
                                      CONCLUSION
         For the reasons explained, we AFFIRM the judgment of the district
court.




          Paske argues that Fitzgerald and the City waived their arguments, citing Martco
         10

Ltd. Partnership v. Wellons, Inc., 588 F.3d 864 (5th Cir. 2009). Martco applies when a
summary judgment movant urges the court of appeals to affirm a district court’s order for a
reason not urged below. Id. at 877. Martco does not apply when we evaluate whether a district
court’s sua sponte summary judgment order was harmless. See Atkins, 677 F.3d at 678.
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