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Paske v. Fitzgerald

United States Court of Appeals, Fifth Circuit

May 4, 2015

PETER J. PASKE, JR., Plaintiff - Appellant
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

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[Copyrighted Material Omitted]

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

Before DAVIS, JONES, and CLEMENT, Circuit Judges.


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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 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 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

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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,] 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 statements, made to me and/or ...

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