THIS DOCUMENT RELATES TO CIVIL ACTION NO. 13-5910
ORDER AND REASONS
Dеfendants Tangipahoa" Parish Rural Fire Protection District Number 2, Nicholas Muscarello, Carlo Bruno, and Dennis Crockermove for summary judgment on plaintiffs section 1983 procedural due process claim, grounded in his alleged entitlement to the protections of. Louisiana’s classified civil service system.
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 Voluntеer Fire Department (Volunteer Department). After he was fired, Maurer sued four groups of defendants — thirteen defendants in all. First, he sued the town of Independence and Independence’s mayor, Michael A. Ragusa.
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.
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 Mus-carello and Carlo Bruno, and the Fire District’s administrator, Dennis Crocker. The Tangipahoa Fire District is a political subdivision of Louisiana.
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.
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.
Accordingly, Maurer’s only remaining claims are as follows:
• a Louisiana state-law defamation claim against Mayor Michael Ragu-sa; and
• a procedural due process claim under 42 U.S.C. § 1983 against the Tangi-pahoa Fire District, Nicholas Mus-carello, Carlo Bruno, and Dennis Crocker.
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.),
In opposition to defendants’ motion for summary judgment, Maurer haphazardly submits numerous documents that are fa-
[T]he fire district does not have any direct suрervision 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.
Absent some demonstration that these documents are admissible, the Court will not consider them. See Arlington Apartment Inv’rs,
• the September 16, 2014 declaration by Justin Morel (Maurer’s Exhibit 14);
• thé 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
Mаurer began working as a firefighter for the town of Independence in October 2009.
Under this new organizational structure, the Tangipahoa Fire District divided Tan-gipahoa Parish into “fire protection service areas” for which the Volunteer Department and the fire departments in other cities or towns would be responsible.
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.
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
The Volunteer Department used its general account to maintain donations collect: ed from Department fundraisers.
Regаrding 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.
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 dutiés as Fire Chief.
The Tangipahoa Fire District, Muscarel-lo, Bruno, and Crocker now move for summary judgment on Maurer’s procedural due process claim.
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,
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 entitle it to a directed verdict if the evidence went un-controverted at trial.” Int’l Shortstop, Inc. v. Rally’s, Inc.,
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,
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 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,
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.
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.
Third, the evidence shows that although Maurer regularly interacted with the Tan-gipahoa 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.
In' sum, defendants have pointed the Court to record evidence demonstrating
y. CONCLUSION
- For the foregoing reasons, the Court GRANTS defendants’ Motion for -Summary Judgment.
Notes
. R. Doc. 119.
. R. Doc. 99 at 2-3.
. Id. at 3.
. Id. at 2-4.
. Id. at 4.
. R. Doc. 97 at 46.
. Id. at 45.
. R. Doc. 98 at 19.
. R. Doc. 113 at 12.
. See R. Doc. 73.
. R. Doc. 119-1 at 1; R. Doc. 120 at 2.
.R. Doc. 120 at 2.
. See id. at 3.
. R. Doc. 119-2 at 1 ¶ 4; R. Doc. 120-1 at 1 •¶ 4.
. R. Doc. 120 at 3.
. Doc. 119-1 at 1; R. Doc. 120-at 3.
. R. Doc. 120-at 3.
. See Deposition of David Maurer, July 16, 2015, at 57:22-58:6.
.Id.
. Deposition of David Maurer, July 16, 2015, at 35:20-36:12, 41:1-11, 55:9-13, 91:6-19.
. Id. at 68:12-69:7
. Id. at 69:11-25.
. Id. at 70:25-71:25.
. Id. at 71:8-17.
. Id. at 71:20-72:9.
. Id. at 69:23-25, 73:16-17, 90: 13-14.
. Id. at 35:4-36:12.
. Id. at 35:11-19, 49:1-8.
. See id. at 35:4-10, 48:11-19.
. See id. at 38:23-39:6.
.. Id. at 36:5-12.
. Id. at 37:13-38:25.
. 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 coopеrative endeavor agreement can spend their own (non-parish taxpayer) money however they see fit, without any over'sight by District 2.")
. Deposition of David Maurer, July 16, 2015, at 41:2-4.
. See zd. at 41:1-11.
. Deposition of David Maurer, July 16, 2015, at 47:22-48:10.
. 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.
. See R. Doc. 99-1 at 4; Deposition of David Maurer, July 16, 2015, at 107:2-10.
. R. Doc. 119.
. See R. Doc. 119-1 at 1-2.
. R. Doc. 120 at 5,
. R. Doc. 119-2 at 1 ¶ 4; R. Doc. 120-1 at 1.
. 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.
. 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 Directоrs of the Independence Volunteer Fire Department, Inc.” (emphasis added)).
. 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.”).
.See Deposition of David Maurer, July 16, 2015, at 57:22-58:6.
. Deposition of David Maurer, July 16, 2015, at 35:1-10.
. Id. at 39:2-4.
. See id. at 39:2-6.
. 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, оut 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 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 structurе 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.
. 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.”)
. Id. at 69:23-25, 73:16-17, 90: 13-14.
