     Case: 18-60245      Document: 00514666535         Page: 1    Date Filed: 10/03/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                    No. 18-60245                            FILED
                                  Summary Calendar                    October 3, 2018
                                                                       Lyle W. Cayce
PATRICK BOYD,                                                               Clerk


              Plaintiff - Appellant

v.

MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY; ALBERT SANTA
CRUZ, Individually and in his Official Capacity as Commissioner of the
Mississippi Department of Public Safety; DONNELL BERRY, Individually
and in his Official Capacity as Director of Mississippi Highway Safety Patrol
and Assistant Commissioner of the Department of Public Safety,

              Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:16-CV-177


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Patrick Boyd brought suit against his employer, the Mississippi
Department of Public Safety, and against two of its officers for racial




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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discrimination and for violation of various constitutional rights. The district
court granted summary judgment to the defendants. We AFFIRM.


              FACTUAL AND PROCEDURAL BACKGROUND
      Boyd began his employment with the Mississippi Department of Public
Safety (“MDPS”) as a Trooper in December 2000. At the time of the events
underlying this dispute, Boyd was Captain of Troop H and a member of the
Strategic Weapons and Tactics (“SWAT”) team. Boyd’s race is white. On
March 26, 2015, Boyd sent an email to other officers and employees of the
MDPS, to which he attached a list of grievances. Some concerned MDPS’s
promotion policies and testing, and were motivated in part by Boyd’s belief that
the MDPS was “favoring one race over the others.”           Boyd stated in his
deposition that all the recipients of his email were white, and none of the
recipients were above Boyd in the chain of command.
      On April 8, Boyd was called into a meeting at MDPS headquarters.
Major O’Banner, Colonel Berry, Lieutenant Colonel Myers, and Commissioner
Santa Cruz were present. During this meeting, which lasted approximately
one hour, Boyd’s superiors questioned him about the March 26 email.
      On April 13, Boyd was handed at MDPS headquarters in Jackson an
order transferring him from Troop H to the salvage division. That same day,
Boyd received an email notifying him that he was removed from the SWAT
team. Colonel Berry testified that he transferred Boyd to the salvage division
because Boyd had caused a “racial ruckus” and tension in Troop H. He also
said he removed Boyd from the SWAT team because SWAT team members
“didn’t feel safe going into a building” with Boyd.
      After the April 13 meeting, Boyd was involved in a vehicle accident while
driving a patrol vehicle on Interstate 20 in the rain. After passing another
vehicle, Boyd was traveling approximately 100 miles-per-hour in a 70 miles-
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per-hour zone. As Boyd moved back into the left lane after passing the vehicle
from the right, he was cresting a hill. Boyd hydroplaned, hit a guard rail, and
totaled his patrol vehicle.
      On May 13, Boyd received a document that charged him with a “Group
III” offense for violating “safety rules where there exists a threat to life or
human safety.” The charges referenced a prior November 2014 memo that
explained that speeding in patrol cars when not responding to an emergency
may constitute a Group III offense. On May 28, a MDPS review panel held a
hearing on the charges. Boyd was represented by counsel, permitted to call his
own witnesses, and allowed to strike two members of the panel. The panel
determined that Boyd violated a safety rule “where there exists a threat to life
or human safety.” On May 29, Boyd was terminated from the MDPS. The
reason given for his termination was the Group III offense.
      Boyd brought this suit on March 9, 2016. He sought damages as well as
injunctive and declaratory relief, claiming that he was subjected to race
discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, and 42 U.S.C. § 1981A.      Boyd also claimed that his rights were
violated under the First Amendment to the United States Constitution and the
Equal Protection Clause of the Fourteenth Amendment, pursuant to 42 U.S.C.
§ 1983. After discovery was completed, the defendants moved for summary
judgment. The district court found no genuine disputes of material fact as to
any element of Boyd’s claims and entered judgment for the defendants.


                                DISCUSSION
      We review a grant of summary judgment de novo. Cooley v. Hous. Auth.
of City of Slidell, 747 F.3d 295, 297 (5th Cir. 2014). “Summary judgment is
warranted if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine [dispute] as to any material fact
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and that the movant is entitled to judgment as a matter of law.” Id. at 297-98
(alteration in original) (quoting Duval v. N. Assurance Co. of Am., 722 F.3d
300, 303 (5th Cir. 2013)). We need not adopt the reasoning of the district court
but “may affirm the district court’s decision on any grounds supported by the
record.” Phillips ex rel Phillips v. Monroe Cnty, 311 F.3d 369, 376 (5th Cir.
2002).


         I. Title VII Claim
      Boyd argues that MDPS discriminated against him on the basis of race
in violation of Title VII. Boyd’s Title VII claim is analyzed under the burden
shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-805 (1973). Price v. Fed. Express Corp., 283 F.3d 715, 719-20 (5th Cir.
2002). “Under this three-part scheme, a plaintiff must first establish a prima
facie case of discrimination by showing: (1) he belongs to a protected group; (2)
he was qualified for the position sought; (3) he suffered an adverse employment
action; and (4) he was replaced by someone outside the protected class.” Id. at
720. If a plaintiff makes a prima facie case, the burden shifts to the employer
to produce a legitimate, non-discriminatory reason for the adverse employment
action. Id.   If the defendant produces such a reason, the plaintiff must
demonstrate that the defendant’s proffered reason was a pretext for
discrimination. Id.
      Assuming without deciding that Boyd has made the required showing
for a prima facie case, the defendants have articulated a legitimate non-
discriminatory reason for Boyd’s transfer to the salvage department and
removal from the SWAT team, as well as his termination. The defendants
stated that the purpose for the transfer to the salvage department was that
Boyd caused a “racial ruckus” and tension within Troop H, and that he was
removed from the SWAT team because some of the members “did not feel safe”
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working with Boyd. Further, the defendants presented evidence that the
reason for termination was Boyd’s violation of a Group III offense. These are
all legitimate, non-discriminatory reasons.
       Boyd therefore must, under the third step of the McDonnell Douglas
framework, create a genuine factual dispute that his violation of a Group III
offense was a pretext for racial discrimination. Boyd attempts to show pretext
by using the accident record of Officer Marshall Pack, who is black and was
not terminated after vehicle accidents. For the first time on appeal, 1 Boyd
presents details on two accidents involving Pack. One involved Pack backing
into a mile marker post at 5 miles per hour while he was assisting another
officer with a mentally ill individual. The other involved Pack’s apparently
hitting a deer. Boyd has not shown that either accident involved a “threat to
life or human safety.”
       Boyd, in his reply brief, also highlights a crash report concerning Officer
Derandy Butler. Boyd argues that Butler was not disciplined, that Butler was
traveling 88 miles-per-hour in a 55 miles-per-hour zone, and that Butler was
“not [responding to] an ‘emergency.’” Boyd, though, provides no evidence to
support that Butler’s actions were not in response to an emergency.
Furthermore, the report cited by Boyd shows that the road was dry, and the
weather conditions were clear at the time of Butler’s accident, as distinguished
from the weather during Boyd’s accident that would cause speeding to be
objectively more dangerous. None of this supports the claim of pretext.
       Boyd’s other argument in support of his contention that his termination
for a Group III offense was a pretext for racial discrimination was that
“Plaintiff also was more experienced and qualified than his black successors.”


       1  Boyd did not discuss any specific comparable incident in the district court. The
district court was dismissive: “Apparently, Plaintiff expects the court to scour these hundreds
of pages and find a ‘needle in a haystack.’”
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The relevance of that escapes us. The issue is whether Boyd was fired for non-
discriminatory reasons, not the qualifications of his successors.
      Finally, Boyd’s argument that the “pre-termination hearing” cannot “be
used by the district court to determine guilt and allow termination of an
employee” is not relevant to the question of pretext. Boyd does not argue that
he was subjected to a different hearing process than individuals of a different
race. Boyd presented no evidence that creates a genuine dispute of material
fact as to the findings of the pre-termination panel. Boyd has therefore not
met his burden to introduce evidence to go before a jury on the issue of pretext. 2
      The district court properly granted summary judgment to the defendants
on Boyd’s Title VII claims.


          II. Constitutional Claims
      Boyd argues that his transfer to the salvage department, his removal
from the SWAT team, and his termination constituted violations of the Equal
Protection Clause of the Fourteenth Amendment and the First Amendment.
He seeks injunctive and declaratory relief against the defendants in their
official capacities and monetary damages against Commissioner Santa Cruz
and Colonel Berry in their individual capacities.
      The “inquiry into intentional discrimination is essentially the same for
individual actions brought under Sections 1981 and 1983, and Title VII.”
Lauderdale v. Tex. Dep’t of Criminal Justice, Inst. Div., 512 F.3d 157, 166 (5th
Cir. 2007) (quoting Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir.
1996)). We have already explained that Boyd did not meet his burden to show
that the defendants’ stated reasons for his transfer to the salvage department,


      2  Boyd attempts to attack the credibility of MDPS’s stated reasons for his transfer
from Troop H and the SWAT team but provides no evidence to support that the reasons were
a pretext for racial discrimination.
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                                    No. 18-60245
removal from the SWAT team, and termination were pretextual. The district
court was therefore correct in dismissing Boyd’s Fourteenth Amendment Equal
Protection claims against all defendants.
      Boyd claims that his First Amendment rights, including the right to free
speech, the right to petition for redress of grievances, and the right to free
association, were violated by the defendants. This argument concerns his
March 26 email listing grievances.          Boyd has no evidence that his email
motivated the department’s decision to terminate him. We have explained that
the undisputed evidence is that the termination was caused by his violation of
a safety rule “where there exists a threat to life or human safety.” We will
analyze here the remaining claim, namely, that his transfer from Troop H to
the salvage department and removal from the SWAT team were unlawful
retaliation under the First Amendment.
      To make a claim for retaliation under the First Amendment’s right to
free speech, the “plaintiff must establish that: (1) he suffered an adverse
employment decision; (2) his speech involved a matter of public concern; (3) his
interest in speaking outweighed the governmental defendant’s interest in
promoting efficiency; and (4) the protected speech motivated the defendant’s
conduct.” Howell v. Town of Ball, 827 F.3d 515, 522 (5th Cir. 2016). We first
address the balance of interests. 3 Pertinent considerations as to whether
Boyd’s interest in speaking outweighed MDPS’s interest in promoting
efficiency include “whether the statement impairs discipline by superiors or
harmony among co-workers, has a detrimental impact on close working
relationships for which personal loyalty and confidence are necessary, or




      3  We express no opinion concerning (1) whether Boyd’s transfer from Troop H to the
salvage department was an adverse employment action nor (2) whether Boyd’s email
constitutes speech involving a matter of public concern.
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impedes the performance of the speaker’s duties or interferes with the regular
operation of the enterprise.” Rankin v. McPherson, 483 U.S. 378, 388 (1987).
      In a similar case, we held that a police officer’s First Amendment interest
in posting critical statements on social media concerning the police chief’s
leadership did not outweigh the police department’s interest in preserving
loyalty and close working relationships. See Graziosi v. City of Greenville
Miss., 775 F.3d 731, 740 (5th Cir. 2015). “Because ‘police departments function
as paramilitary organizations charged with maintaining public safety and
order, they are given more latitude in their decisions regarding discipline and
personnel regulations than an ordinary government employer.’” Id. (quoting
Nixon v. City of Houston, 511 F.3d 494, 498 (5th Cir. 2007)). It was relevant
that the department dismissed Graziosi to prevent insubordination. Id. We
also credited the department’s claim that there was “office buzz” concerning
Graziosi’s comments and held that the department did not need to wait for the
buzz to become a “mini-insurrection.” Id. at 741.
      Here, Boyd wrote in his email that the grievances could be viewed as “in-
fighting.” In another email, Boyd said he did not want the first email to cause
“hatred or animosity” among the officers, perhaps recognizing his first email
might have done so. Other uncontroverted evidence in the record supports that
Boyd’s email interfered with the operations of the department. For example,
Colonel Berry testified that the email created a “racial ruckus” and that
members of the SWAT team expressed concerns that they did not feel safe
operating with Boyd. Following the reasoning of Graziosi, the department was
justified in moving Boyd from Troop H and removing him from the SWAT team
to maintain close working relationships and discipline within those groups.
The district court did not err in granting summary judgment to the department
on Boyd’s First Amendment free speech claim.


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                                 No. 18-60245
      Boyd’s First Amendment right to petition for redress of grievances claim
fails for the same reasons as his free speech claim. Retaliation claims for the
right to petition are analyzed the same way as free speech retaliation claims;
Boyd must show that he meets the four-prong First Amendment retaliation
test. Gibson v. Kilpatrick, 838 F.3d 476, 481 (5th Cir. 2016).        As already
discussed, Boyd has not shown that his interest in petitioning for redress of
grievances outweighs the MDPS’s interest in efficiency in the workplace.
      Finally, Boyd’s claim that his right to free association was violated fails.
Boyd has not introduced any evidence that his undefined association had any
impact on the decision to transfer him, to remove him from the SWAT team, or
to terminate him. To sustain a free association claim, Boyd is required to show
that he suffered an adverse employment decision, that his interest in
association outweighs the MDPS’s interest in promoting efficiency, and that
his association motivated the MDPS’s actions. Breaux v. City of Garland, 205
F.3d 150, 156, 157 n.12 (5th Cir. 2000). Because Boyd has not shown that his
interest in free association outweighs the MDPS’s interest in promoting
efficiency and close working relationships, the department did not violate his
right to freely associate.
      Boyd’s constitutional rights were not violated, which moots the issue of
whether Commissioner Santa Cruz and Colonel Berry have qualified
immunity. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
      AFFIRMED.




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