Maurer v. Independence Town

Filing 143

ORDER & REASONS granting 119 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 11/30/2015. (Reference: 13-5910)(mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAVID S. MAURER

CIVIL ACTION

VERSUS

NO: 13-5450 c/w
13-5910

TOWN OF INDEPENDENCE,
LOUISIANA, ET AL.

SECTION: R

THIS DOCUMENT RELATES TO CIVIL ACTION NO. 13-5910
ORDER AND REASONS
Defendants Tangipahoa Parish Rural Fire Protection District Number
2, Nicholas Muscarello, Carlo Bruno, and Dennis Crocker move for summary
judgment on plaintiff’s section 1983 procedural due process claim, grounded
in his alleged entitlement to the protections of Louisiana’s classified civil
service system.1 For the following reasons, the Court grants the motion.

I.

PROCEDURAL BACKGROUND
A.

Parties

This 42 U.S.C. § 1983 and state-law defamation suit concerns plaintiff
David Maurer’s termination from his position as the chief of the Independence
Volunteer Fire Department (Volunteer Department). After he was fired,

1

R. Doc. 119.

Maurer sued four groups of defendants–thirteen defendants in all. First, he
sued the town of Independence and Independence's mayor, Michael A.
Ragusa.2 Independence is a political subdivision of Louisiana.
Second, he sued the Volunteer Department and five members of its
board of directors: Jeremy Baham, Eric Anthony, Jonathan Tallo, Christopher
McKinney, and Anthony Parazzo. The Volunteer Department is a domestic
corporation that provides fire protection services to Independence and the
surrounding area.3
Third, Maurer sued Tangipahoa Parish Rural Fire Protection District
Number 2 (Tangipahoa Fire District), together with two members of
Tangipahoa Fire District's Board of Commissioners, Nicholas Muscarello and
Carlo Bruno, and the Fire District's administrator, Dennis Crocker. The
Tangipahoa Fire District is a political subdivision of Louisiana.4
Finally, Maurer sued Tangipahoa Parish Government, which is also a
political subdivision of Louisiana.

Maurer sued all of the individual

defendants in their individual and official capacities.5

2

R. Doc. 99 at 2-3.

3

Id. at 3.

4

Id. at 2-4.

5

Id. at 4.
2

B.

Maurer’s Remaining Claims

On March 2, 2015, the Court dismissed with prejudice all of Maurer’s
claims against Independence, Jeremy Baham, Eric Anthony, Jonathan Tallo,
Christopher McKinney, and Anthony Parazzo.6 The Court also dismissed with
prejudice Maurer’s civil rights claim against Mayor Ragusa.7 In a separate
order, the Court dismissed with prejudice Maurer’s claims against the
Tangipahoa Parish Government.8 On July 7, 2015, the Court dismissed with
prejudice all of Maurer’s claims against the Volunteer Department.9
Accordingly, Maurer’s only remaining claims are as follows:
•

a Louisiana state-law defamation claim against Mayor Michael
Ragusa; and

•

a procedural due process claim under 42 U.S.C. § 1983 against the
Tangipahoa Fire District, Nicholas Muscarello, Carlo Bruno, and
Dennis Crocker.

6

R. Doc. 97 at 46.

7

Id. at 45.

8

R. Doc. 98 at 19.

9

R. Doc. 113 at 12.
3

II.

FACTUAL BACKGROUND AND SUMMARY JUDGMENT
RECORD
A.

Admissibility of Summary Judgment Evidence

Under Federal Rule of Civil Procedure 56, a party may support or oppose
a motion for summary judgment by citing to particular parts of materials in
the record, if that evidence is otherwise admissible. See Fed R. Civ. P. 56(c);
see Arlington Apartment Inv’rs, LLC v. Allied World Assurance Co. (U.S.), 612
F. App’x 237, 238 (5th Cir. 2015) (“A court may consider only admissible
evidence in ruling on a motion for summary judgment.”)
In opposition to defendants’ motion for summary judgment, Maurer
haphazardly submits numerous documents that are facially irrelevant and
inadmissable because the documents are unexecuted, unauthenticated, and
incomplete, among other issues. This is especially problematic because the
Court cannot at all determine where these documents originated or what they
are supposed to show. For example, Maurer’s Exhibit 5, titled “2013 Contract”
is not only unexecuted, but also incomplete. The language of the contract
explicitly provides that there should be a number of attachments
accompanying the contract, including a cooperative endeavor agreement
between the Tangipahoa Fire District, the Volunteer Department, and the
town of Independence. No such agreement is attached. Instead, Maurer

4

attaches agreements pertaining to Ponchatoula, Natalbany, Hammond, and
Kentwood, and each agreement is different. Moreover, at a different stage of
this litigation, Maurer 0ffered a similar, but materially different document
with different provisions, including provisions specific to the Volunteer
Department in Independence, in response to an earlier motion to dismiss.10
See Maurer v. Town of Independence, 45 F. Supp. 3d 535, 550 (E.D. La. 2014).
In the Court’s September 2014 order granting the motion to dismiss, the Court
noted that the Volunteer Department’s cooperative endeavor agreement with
the Tangipahoa Fire District explicitly provided:
[T]he fire district does not have any direct supervision of the
Independence Volunteer Fire Dept., Inc’s firefighters [and] no
member of the Board of Commissioners of the Tangipahoa Parish
Rural Fire Protection District Number Two nor any employee,
agent or representation thereof shall direct orders to the
Independence Volunteer Fire Dept., Inc.’s employees, firefighters,
emergency service providers or officers . . . .”
Id. This provision is nowhere to be found in the document Maurer currently
presents to the Court and directly impacts the issues the Court must analyze
on summary judgment. It is incumbent upon Maurer to offer admissible
evidence in opposition to defendants’ motion for summary judgment because
this impacts the accuracy vel non of the record on which the Court is asked to
decide the motion.
10

See R. Doc. 73.
5

Absent some demonstration that these documents are admissible, the
Court will not consider them. See Arlington Apartment Inv’rs, 612 F. App’x
at 238 (“Rule 56 does not impose upon . . . the district court a duty to sift
through the record in search of evidence to support a party’s opposition to
summary judgment.”). Accordingly, the Court will consider, if relevant, only
the following evidence cited in opposition to the motion for summary
judgment:
•

the September 16, 2014 declaration by Justin Morel (Maurer’s
Exhibit 14);

•

the July 29, 2015 declaration by Arlene Hall (Maurer’s Exhibit 15);

•

two August 3, 2015 declarations by Pete Giamalva (Maurer’s
Exhibits 19-20); and

•

the August 3, 2015 declaration by David Maurer (Maurer’s Exhibit
21).

B.

Summary Judgment Record

6

Maurer began working as a firefighter for the town of Independence in
October 2009.11

At that time, the Fire Department of the Town of

Independence and the Volunteer Department jointly provided fire protection
services for the town and the surrounding area.12
In September 2012, Independence decided to close its fire department
and hire the Volunteer Department as its exclusive provider of fire protection
services.13 Consistent with this plan, the Board of Directors of the Volunteer
Department voted to hire Maurer as Fire Chief in December 2012.14
Independence’s former fire chief, defendant Dennis Crocker, became
Administrator of the Tangipahoa Fire District.15

In January 2013,

Independence formally terminated its firefighter employees, and the Volunteer
Department immediately rehired those firefighters.16
assumed his role as Fire Chief.

11

R. Doc. 119-1 at 1; R. Doc. 120 at 2.

12

R. Doc. 120 at 2..

13

See id. at 3.

14

R. Doc. 119-2 at 1 ¶ 4; R. Doc. 120-1 at 1 ¶ 4.

15

R. Doc. 120 at 3.

16

Doc. 119-1 at 1; R. Doc. 120-at 3.
7

Maurer officially

Under this new organizational structure, the Tangipahoa Fire District
divided Tangipahoa Parish into “fire protection service areas” for which the
Volunteer Department and the fire departments in other cities or towns would
be responsible.17 The Tangipahoa Fire District maintains taxpayer millage
funds, which it allocates according to a percentage formula to the various fire
departments.18 Independence’s Volunteer Department receives seven percent
of all Tangipahoa taxpayer millage funds earmarked for fire protection
services.19
During his tenure as Fire Chief under this new organizational structure,
Maurer oversaw the daily activities of the Volunteer Department, which
included organizing Volunteer Department meetings, managing the Volunteer
Department’s bank accounts, and determining who to hire and fire as
employees of his Volunteer Department.20 Maurer retained much autonomy
in the position of Fire Chief. For example, Maurer changed the way fire trucks
responded to emergency medical calls.21 Dennis Crocker, who was then
17

R. Doc. 120- at 3.

18

See Deposition of David Maurer, July 16, 2015, at 57:22 - 58:6.

19

Id.

20

Deposition of David Maurer, July 16, 2015, at 35:20 - 36:12,
41:1-11, 55:9 - 13, 91:6 - 19.
21

Id. at 68:12 - 69:7
8

serving as Administrator of the Tangipahoa Fire District, believed that the
Volunteer Department’s fire trucks should have responded differently.
Nonetheless, Maurer testified that he did not change his emergency response
plan because Crocker was not his boss.22 Maurer also sent the Volunteer
Department’s new firefighters to training in Hammond, Louisiana, though in
the past, new firefighters received training in Baton Rouge.23 Crocker told
Maurer that he believed Maurer should instead send the new firefighters back
to Baton Rouge.24 Nonetheless, Maurer testified that he did not change his
decision because he did not think that it was in the Volunteer Department’s
best interest to send the firefighters to the training conducted in Baton
Rouge.25 Maurer repeatedly testified that his decisions contrary to Crocker’s
advice were without consequence because Crocker was not Maurer’s boss.26
Regarding the Volunteer Department’s financial structure, Maurer
testified that the Volunteer Department maintained three bank accounts: a
“savings” account, an “operations” account, and a general Volunteer

22

Id. at 69:11 - 25.

23

Id. at 70:25 - 71:25.

24

Id. at 71:8 - 17.

25

Id. at 71:20 - 72:9.

26

Id. at 69:23 - 25, 73:16 - 17, 90: 13 - 14.
9

Department account.27 The savings account was short-lived and infrequently
used.28 The Volunteer Department used the operations account solely for
payroll. The Tangipahoa Fire District deposited tax dollars allocated to
Independence into the Volunteer Department’s operations account. The
Volunteer Department would then use the taxpayer funds in its operations
account to pay its firefighter employees.29 These firefighters received checks
and W-2 income tax return forms from the Volunteer Department, not
Tangipahoa Fire District.30
The Volunteer Department used its general account to maintain
donations collected from Department fundraisers.31

The Volunteer

Department would spend its general account funds on things like equipment
that the Department’s firefighters wanted to purchase.32 The Tangipahoa Fire

27

Id. at 35:4 - 36:12.

28

Id. at 35:11 - 19, 49:1 - 8.

29

See id. at 35:4 - 10, 48:11 - 19.

30

See id. at 38:23 - 39:6.

31

Id. at 36:5 - 12.

32

Id. at 37:13 - 38:25.
10

District had no control over the funds in the Volunteer Department’s general
account because that money did not consist of taxpayer funds.33
Regarding how the Volunteer Department hired new employees, Maurer
testified that the employment process differed for volunteer firefighters and
paid firefighter employees. For volunteer firefighters, interested persons
would fill out an application, and the existing firefighters, both volunteer and
paid, voted on whether to accept the applicant as a volunteer.34 For paid
firefighter employees, Maurer testified that interested persons would fill out
an application and submit it directly to him, as the Volunteer Department’s
Fire Chief.

Maurer would review the application with the Volunteer

Department’s assistant fire chief and decide whether the person should be
hired. If Maurer and the assistant fire chief decided to hire the applicant, the
Tangipahoa Fire District would then approve the Department’s new hire.35
According to Maurer, the Tangipahoa Fire District never refused to approve

33

Id. at 48:14 - 49:2, 51:21 - 52:3; see also R. Doc. 119-4 at 2 ¶ 13
(Declaration of Dennis Crocker) (“Fire departments with which District 2
has a cooperative endeavor agreement can spend their own (non-parish
taxpayer) money however they see fit, without any oversight by District 2.”)
34

Deposition of David Maurer, July 16, 2015, at 41:2 - 4.

35

See id. at 41:1 - 11.
11

a new hire for the Department and never ordered the Department to hire
someone that the Department had not specifically selected.36
Less than a year after Maurer assumed the position of Fire Chief, in July
2013, the Board of Directors of the Volunteer Department met and voted to
suspend Maurer from his duties as Fire Chief.37 Shortly thereafter, on July 29,
2013, the Board of Directors of the Volunteer Department met again and
formally terminated Maurer as Fire Chief via written letter.38
The Tangipahoa Fire District, Muscarello, Bruno, and Crocker now move
for summary judgment on Maurer’s procedural due process claim.39
Defendants argue that the facts undisputedly illustrate that the Tangipahoa
Fire District was not Maurer’s de facto employer.40 In opposition, Maurer
argues that the Tangipahoa Fire District had the power to select and engage

36

Deposition of David Maurer, July 16, 2015, at 47:22 - 48:10.

37

See R. Doc. 119-2 at 2 ¶ 14; R. Doc. 120-1 at 3 ¶ 14; Deposition of
David Maurer, July 16, 2015, at 104:19 - 24.
38

See R. Doc. 99-1 at 4; Deposition of David Maurer, July 16,
2015, at 107:2 - 10.
39

R. Doc. 119.

40

See R. Doc. 119-1 at 1-2.
12

all paid firefighters, to pay wages to all paid firefighters, to dismiss all paid and
volunteer firefighters, and to control all paid and volunteer firefighters.41

III. LEGAL STANDARD
Summary judgment is warranted when “the movant 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); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact
exists, the Court considers “all of the evidence in the record but refrain[s] from
making credibility determinations or weighing the evidence.” Delta & Pine
Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir.
2008). All reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth ultimate or conclusory
facts and conclusions of law are insufficient to either support or defeat a
motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d
1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 1075.
If the dispositive issue is one on which the movant will bear the burden
of proof at trial, the movant “must come forward with evidence which would
41

R. Doc. 120 at 5.
13

entitle it to a directed verdict if the evidence went uncontroverted at trial.”
Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264–65 (5th Cir. 1991).
The nonmoving party can then defeat the motion by either countering with
evidence sufficient to demonstrate the existence of a genuine dispute of
material fact, or “showing that the moving party's evidence is so sheer that it
may not persuade the reasonable fact-finder to return a verdict in favor of the
moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear the
burden of proof at trial, the moving party may satisfy its burden by merely
pointing out that the evidence in the record is insufficient with respect to an
essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at 325.
The burden then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a genuine issue exists.
See id. at 324. The nonmovant may not rest upon the pleadings, but must
identify specific facts that establish a genuine issue for trial. See, e.g., id.;
Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of proof at
trial.” (quoting Celotex, 477 U.S. at 322)).
14

IV.

DISCUSSION
Maurer’s section 1983 claim against defendants Tangipahoa Fire

District, Nicholas Muscarello, Carlo Bruno, and Dennis Crocker depends on
whether the Tangipahoa Fire District was Maurer’s de facto employer. If so,
then Maurer had a property interest in his de facto employment with the
Tangipahoa Fire District by virtue of his status as a classified civil service
employee. If not; then not.
The Louisiana Constitution provides that all municipalities and fire
protection districts operating a "regularly paid fire department" must establish
a classified civil service system. La. Const. art. 10 § 16. A state statute,
Louisiana Revised Statute § 33:2541, lists the positions deemed classified
within fire protection districts. It includes all fire department positions for
which "the right of employee selection, appointment, supervision, and
discharge is vested in the government of the municipality, parish or fire
protection district . . . under which the fire . . . service functions." La. Rev.
Stat. § 33:2541. Thus, whether Maurer’s position as Fire Chief was a classified
position under Louisiana law depends on whether the Tangipahoa Fire District
had the right to select, appoint, supervise, and discharge Maurer.

15

The statutory criteria parallel the Louisiana jurisprudential test for
determining whether an employer-employee relationship exists. In Louisiana,
the employer-employee relationship is evidenced by four primary factors: (1)
selection and engagement, (2) payment of wages, (3) power of dismissal, and
(4) power of control. See Harrington v. Hebert, 789 So. 2d 649, 653 (La. App.
3 Cir. 2001) (citing Boswell v. Kurthwood Manor Nursing Home, 647 So. 2d
630, 631 (La. App. 3 Cir. 1994)) (worker's compensation); see also Berthelot
v. Stallworth, 884 So. 2d 648, 654 (La. App. 4 Cir. 2004) (vicarious liability).
None of these factors alone is determinative. Harrington, 789 So. 2d at 653.
Defendants point to much evidence in the record demonstrating that the
Tangipahoa Fire District did not select, appoint, supervise, or discharge
Maurer. First, in response to defendants’ motion for summary judgment,
Maurer admits that the Board of Directors of the Volunteer Department hired
him as the Department’s Fire Chief.42 Maurer likewise admitted that the Board
of Directors of the Volunteer Department voted to suspend him and voted to
fire him.43 Immediately after this second vote, the Volunteer Department sent

42

R. Doc. 119-2 at 1 ¶ 4; R. Doc. 120-1 at 1.

43

R. Doc. 119-2 at 2 ¶ 14; R. Doc. 120-1 at 3 ¶ 14; Deposition of
David Maurer, July 16, 2015, at 107:3 - 10.
16

Maurer a notice of termination.44 Accordingly, the undisputed evidence shows
that the Volunteer Department, not the Tangipahoa Fire District, was vested
with "the right of employee selection, appointment [and] discharge,” as
required by Louisiana Revised Statute § 33:2541.
Second, regarding how the Volunteer Department firefighters were paid,
defendants do not seriously dispute that the funds used to pay the firefighters’
salaries are taxpayer funds.45 The Tangipahoa Fire District finances the
Volunteer Department through a percentage appropriation of the total amount
it collections from taxpayers earmarked for fire protection services. According
to Maurer’s testimony, the Tangipahoa Fire District collected taxpayer
millages, allocated percentages of these funds to each fire department, and
deposited the appropriate amount in each department’s account.46 Beyond
disbursing taxpayer funds, however, the Tangipahoa Fire District had no
44

See R. Doc. 99-1 at 4 (“Chief David Maurer . . . was notified in
writing on July 29, 2013 that he has been relieved of his duties by the
Board of Directors of the Independence Volunteer Fire Department, Inc.”
(emphasis added)).
45

R. Doc. 119-4 at 2 ¶ 12 (Declaration of Dennis Crocker) (“Fire
departments with which District 2 have a cooperative endeavor agreement
inform District 2 when they want to hire an employee and have that new
employee’s salary funded by parish taxpayer money. This is for auditing
purposes, as District 2 does not hire the fire department’s employee or issue
the fire department employee’s paycheck.”).
46

See Deposition of David Maurer, July 16, 2015, at 57:22 - 58:6.
17

involvement in paying firefighters’ wages. According to Maurer’s testimony,
the Volunteer Department maintained a specific “operations” account for
payroll purposes.47 The paychecks issued to each firefighter came from the
Volunteer Department.48 And the Volunteer Department issued W-2 income
tax forms to its firefighters at the end of each year.49 This evidence shows that
the Volunteer Department was responsible for paying its employees’ wages.
There is no evidence in the record illustrating that Maurer was paid any
differently.50 Cf. France v. E. Cent. Bossier Fire Prot. Dist. No. 1, 4 So. 3d 959,

47

Deposition of David Maurer, July 16, 2015, at 35:1 - 10.

48

Id. at 39:2 - 4.

49

See id. at 39:2 - 6.

50

In opposition to the motion for summary judgment, Maurer
submits two declarations–one by him, and one by a firefighter in another
town named Justin Morel. Maurer declares that his salary as fire chief “was
to begin at $41,400" for his first six months of service, “then it was to
increase to $45,000[.]” R. Doc. 120-22 at 1. Maurer also declares that Carlo
Bruno told Maurer that he would have to wait until he had served as fire
chief for one year to receive a raise and that “payroll records will show that
[Maurer] followed the ruling of Carlo Bruno.” Id. Justin Morel makes a
similar declaration with regard to his own salary. See R. Doc. 120-15 at 2.
Ignoring that Maurer neglected to submit any payroll records or to
point the Court to any other record evidence substantiating his declaration,
the Court finds that this evidence does not refute that Maurer, like all other
firefighters, was paid with checks written by the Volunteer Department, out
of the Volunteer Department’s operations account. Maurer has not
presented any evidence to show that he was paid directly by the Tangipahoa
Fire District.
Morel’s declaration consists of two sentences explaining that his Fire
18

at 964-65 (La. App. 2 Cir. 2009) (finding that a firefighter directly paid by a
fire protection district is a classified civil service employee).
Third, the evidence shows that although Maurer regularly interacted
with the Tangipahoa Fire District, the District did not directly supervise or
control Maurer’s day-to-day work. The Tangipahoa Fire District had no
control over funds that the Volunteer Department raised through donations,
and the Volunteer Department regularly used its donation money to purchase
equipment and other items for the firefighters.51 In addition, Maurer testified
that, during his tenure as Fire Chief, he implemented a number of changes to
how the Volunteer Department operated.

No one associated with the

Tangipahoa Fire District ordered Maurer to cease these efforts or to
implement changes that Maurer had not otherwise imposed. Importantly,
Maurer testified three separate times that Dennis Crocker, Administrator of

Department “set [his] salary . . . at $1,800" per month and that the
Tangipahoa Fire District “set [his] salary at $900.00 per month.” R. Doc.
120-15 at 2. Morel provides no further evidence or information regarding
the structure of his fire department or how its employees are paid. This is
insufficient to create a genuine issue of material fact in the face of opposing
evidence that is specifically directed toward the plaintiff in this case.
51

See id. at 36:5 - 38:25, 48:14 - 49:2, 51:21 - 52:3; see also R.
Doc. 119-4 at 2 ¶ 13 (Declaration of Dennis Crocker) (“Fire departments
with which District 2 has a cooperative endeavor agreement can spend their
own (non-parish taxpayer) money however they see fit, without any
oversight by District 2.”)
19

the Tangipahoa Fire District, was not his boss.52 This evidence shows that the
Fire District did not directly control Maurer’s work as Fire Chief.
In sum, defendants have pointed the Court to record evidence
demonstrating that Maurer is unable to satisfy his burden of proving that the
Tangipahoa Fire District exercised sufficient control over his selection,
appointment, supervision, and discharge to be considered Maurer’s de facto
employer. Because Maurer cannot satisfy the elements of Louisiana Revised
Statute § 33:2541, he cannot prove that his position as Fire Chief was a civil
service position. Accordingly, his section 1983 procedural due process claim
against the Tangipahoa Fire District, Dennis Crocker, Nicholas Muscarello,
and Carlo Bruno must fail.

52

Id. at 69:23 - 25, 73:16 - 17, 90: 13 - 14.
20

V.

CONCLUSION
For the foregoing reasons, the Court GRANTS defendants’ Motion for

Summary Judgment.

New Orleans, Louisiana, this30thday of November, 2015.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

21