Case: 16-30673          Document: 00514142772        Page: 1   Date Filed: 09/05/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals

                                            No. 16-30673
                                                                                    Fifth Circuit

                                                                                  FILED
                                                                          September 5, 2017

DAVID S. MAURER,                                                             Lyle W. Cayce
                                                                                  Clerk
                Plaintiff

v.

INDEPENDENCE TOWN,

                Defendant

----------------------------------------------------

DAVID S. MAURER,

                 Plaintiff - Appellant

v.

NICHOLAS J. MUSCARELLO, SR.; CARLO S. BRUNO; DENNIS
CROCKER; TANGIPAHOA PARISH RURAL FIRE PROTECTION
DISTRICT NO. 2,

                 Defendants - Appellees




                      Appeal from the United States District Court
                         for the Eastern District of Louisiana
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                                  No. 16-30673
Before DAVIS, GRAVES, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      David S. Maurer served a contentious seven months as fire chief in
Independence, Louisiana, before he was fired. He contends he was entitled to
notice and an opportunity to respond before that termination. Whether the
Due Process Clause affords him that right turns on whether he had a property
interest in his employment. And that depends on whether he was a civil
service employee under Louisiana law. He may have been a civil service
employee, so we reverse the district court’s grant of summary judgment and
remand for further proceedings.
                                         I.
      Independence closed its town fire department at the end of 2012. The
Tangipahoa Parish Rural Fire Protection District Number 2 (the District), a
political subdivision of the parish, took over fire protection services for the town
and surrounding areas. The District divided its jurisdiction into service areas
and contracted with ten volunteer fire departments to provide fire protection
services in defined areas.      For Independence, that department was the
Independence Volunteer Fire Department (the Volunteer Department).
      An unexecuted contract in the record sets out the relationship between
the District and the ten volunteer departments, including the Independence
Volunteer Department. The contract provides that the District will collect and
allocate tax dollars to the departments, and, in return, the departments will
“respond to any and all calls in their respective areas of responsibility.” The
departments also agree that “[a]ll additions or other changes to personnel shall
be ratified in accordance with the annual budget adopted by the Board of
Commissioners of the District” and that purchases of property or equipment,
or modifications to existing property, with a cost of more than $10,000 must be
preapproved by the District. Although the departments “administer their own
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                                 No. 16-30673
payroll,” payroll expenses are reimbursed by the District. Such expenses will
“not be reimbursed for any position that has not been ratified by the Board of
Commissioners of the District.”     When a department wants to hire a job
applicant, that decision “must be ratified by the District.” The applicant must
undergo a background check and drug and alcohol testing, and written
evidence that the applicant was advised of these requirements must be sent to
the District.
      The contract also mandates that volunteer department members comply
with District policies and states that, if they do not, the District has the
authority to require the volunteer department to fire the member:
             If an individual Fire Department does not take timely action
      against its members and/or volunteers who have violated the
      [District’s] adopted policies and procedures, the violation(s) shall
      be immediately reported to the Administrator [of the District] and
      forwarded to the Board of Commissioners of the District. After an
      investigation has been completed, the District board will render a
      final decision, which shall be binding upon all Fire Departments
      ....
      The policies adopted by the District include recommended duties and a
mandatory code of conduct, drug and alcohol abuse policy, social media policy,
code of ethics, sexual and other harassment policy, and procedures for dealing
with complaints against a volunteer department or department employee.
According to the policies, the District has the authority to investigate any
complaint, determine whether it is supported by sufficient evidence, and take
“the appropriate action” under the District’s disciplinary policy.
      In accordance with the new arrangement, Independence terminated its
firefighters at the end of 2012, and the Volunteer Department hired them.
Around this time, Maurer, who previously worked for Independence’s fire
department, became fire chief of the Volunteer Department. There is some
dispute about how he was hired.       But taking the facts in the light most

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                                 No. 16-30673
favorable to Maurer, Defendant Dennis Crocker, the previous fire chief for
Independence and incoming administrator for the District, selected him, and
both the District’s Board of Commissioners and the Board of Directors of the
Volunteer Fire Department reviewed and approved the hire.            The record
includes an “Approval to Hire” form for Maurer’s position titled “Tangipahoa
Parish Rural Fire #2 Position Requisition/Approval to Hire Form.”
      During the seven months Maurer was fire chief, his paychecks came from
the Volunteer Department, although the District allocated the funds. He set
schedules for the Department’s firefighters and managed the Department’s
day-to-day activities. He also had control over funds that came from donations.
But he testified that “anything [he] needed, as far as buying something, hiring
somebody, salary approvals, all went through” the District. He confirmed that,
in accordance with the contract, if he sought to hire a firefighter, he would
“seek approval from Fire District 2,” and if it was denied, he could not hire the
employee. District board meeting minutes confirm that he sought and received
approval for hires. In terms of Maurer’s own pay, he claims that he expected
his salary to increase after six months on the job, but the District refused to
increase the funds allocated for it.       A fire chief for another department
contracting with the District submitted an affidavit saying that the District
similarly set his salary and told him it controlled hiring for his department.
      During his tenure Maurer had numerous disagreements with Crocker.
For example, Crocker recommended that Maurer fire a firefighter, but Maurer
did not do so. Maurer changed the way medical calls were handled in a way
that displeased Crocker.     Maurer also sent firefighters for training in a
different program than the one Crocker preferred. They also disagreed about
whether Maurer should hire Crocker’s son, despite an opinion from the
Louisiana Board of Ethics that doing so would be improper. Maurer also
described an instance when Crocker publicly criticized him for failing to get
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fire marshal approval for a fireworks show. At his deposition, Maurer said he
suffered no negative repercussions for disregarding Crocker’s input because
Crocker was not his boss.
      But after seven months, following an investigation by Crocker, the Board
of the Volunteer Department voted to terminate Maurer’s employment. The
record is vague about the details of the process for removing Maurer, but there
is some evidence indicating that the District was involved. The Independence
town clerk stated that shortly before Maurer’s removal, at Crocker’s behest
and with input from a member of the District’s Board of Commissioners, she
wrote a letter to the District listing complaints about Maurer’s behavior and
threatening to withhold payments to the District in the amount of Maurer’s
salary if Maurer was not removed.
      Maurer filed suit raising a procedural due process claim under section
1983 against the District, Crocker, and two members of the District’s Board of
Commissioners. Defendants moved for summary judgment on the ground that
Maurer had no property interest in his employment and thus no constitutional
protections. The district court agreed.
                                      II.
      In ruling on the motion for summary judgment, the district court refused
to consider the contract between the District and the ten volunteer
departments that has all those details about the entities’ relationship detailed
above. It thought the contract was inadmissible because it was unexecuted,
unauthenticated, and did not include a separate agreement—a cooperative
agreement between the District and the Volunteer Department—it purported
to attach.
      We review a district court’s evidentiary rulings when it determines the
summary judgment record under an abuse of discretion standard. See Curtis
v. M&S Petroleum, Inc., 

, 667 (5th Cir. 1999). Although that
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standard is deferential, an “erroneous view of the law” meets it. Brown v. Ill.
Cent. R.R. Co., 

, 535 (5th Cir. 2013) (quoting Knight v. Kirby
Inland Marine, Inc., 

, 351 (5th Cir. 2007)).
       That is what happened here. At the summary judgment stage, evidence
need not be authenticated or otherwise presented in an admissible form. See
FED. R. CIV. P. 56(c); Lee v. Offshore Logistical & Transp., LLC, 

,
355 (5th Cir. 2017); LSR Consulting, LLC v. Wells Fargo Bank, N.A., 

, 534 (5th Cir. 2016). After a 2010 revision to Rule 56, “materials cited to
support or dispute a fact need only be capable of being ‘presented in a form
that would be admissible in evidence.’” LSR Consulting, 

(quoting FED. R. CIV. P. 56(c)(2)). 1 This flexibility allows the court to consider
the evidence that would likely be admitted at trial—as summary judgment is
trying to determine if the evidence admitted at trial would allow a jury to find
in favor of the nonmovant—without imposing on parties the time and expense
it takes to authenticate everything in the record.                 See FED. R. CIV. P.
56(c)(1)(A).
       There is nothing to compel a conclusion that the contract—one of the
more common types of exhibits admitted in civil cases—is not capable of being
admitted at an eventual trial. It is undisputed that the District and Volunteer
Department entered into an agreement.                The contract Maurer submitted
appears to be that agreement, and Defendants have not argued otherwise. The
absence of a signature does not make the contract inadmissible for the purpose



       1 As Lee and LSR Consulting show, confusion about the 2010 change to Rule 56
remains common. That confusion reaches our court. The district court relied on an
unpublished 2015 case from this court which, citing a 2000 case, stated that courts “may
consider only admissible evidence in ruling on a motion for summary judgment.” Maurer v.
Town of Indep., 

, 556 (E.D. La. 2015) (quoting Arlington Apartment Inv’rs,
LLC v. Allied World Assur. Co., 612 F. App’x 237, 238 (5th Cir. 2015) (citing Mersch v. City
of Dallas, 

, 734–35 (5th Cir. 2000))).

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Maurer is using it: to show the division of authority between the parties. See
FED. R. EVID. 901; see also, e.g., Tyco Thermal Controls, LLC v. Redwood
Industrials, LLC, 

, at *3 (N.D. Cal. July 9, 2012) (refusing to
exclude unsigned contract when a witness statement said contract had been
executed); Knit With v. Knitting Fever, Inc., 

, 587 (E.D. Pa.
2010) (refusing to exclude unsigned agreement when the plaintiff presented
“significant evidence that the executed . . . [a]greement did, at one point,
exist”). That the contract does not attach a separate additional agreement it
refers to between the District and the Volunteer Department would not seem
to bar its ultimate use at trial (and if the additional agreement provided
evidence to support the District, it could have submitted that document).
      Even if the some of the concerns the court raised did create substantial
doubt about the admissibility of the contract, it was the obligation of the
opposing party to object. FED. R. CIV. P. 56(c)(2); see also Donaghey v. Ocean
Drilling & Expl. Co., 

, 650 (5th Cir. 1992) (noting that in the
absence of a timely objection or motion to strike, defects in summary judgment
evidence ordinarily are waived). Such an objection gives the proffering party
a chance “to explain the admissible form that is anticipated.” FED. R. CIV. P.
56 advisory committee’s note to 2010 amendment.           So if the District had
objected to the contract’s admissibility, Maurer could have tried and remedied
any defects by, for example, filing a declaration authenticating the contract or
locating a signed copy. As there was no objection, Maurer was not on notice
that he needed to formalize his submission.
      Because the district court’s exclusion of the contract was not consistent
with the new summary judgment rule, its ruling was an abuse of discretion.
We will thus consider the contract in determining whether the District was
entitled to summary judgment on the civil service question. See 

(explaining that the remedy for an erroneous evidentiary ruling at
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                                No. 16-30673
summary judgment is to review the district court’s grant with the excluded
evidence as part of the record); Heinsohn v. Carabin & Shaw, P.C., 

, 233 (5th Cir. 2016) (noting that erroneous evidentiary rulings are subject
to harmless error ruling, but correcting those errors when they affected
whether summary judgment should have been granted).
                                    III.
      The Fourteenth Amendment guarantees “No State shall . . . deprive any
person of life, liberty, or property, without due process of law.” U.S. CONST.
amend. XIV. The process due varies by the strength of the interests involved,
but only actions that infringe enumerated interests—life, liberty, and
property—require due process. See Texas Faculty Ass’n v. Univ. of Texas at
Dallas, 

, 383–84 (5th Cir. 1991). Maurer’s entitlement to process
thus depends on whether he had a property interest in continued employment.
Property interests “are not created by the Constitution” but “are created and
their dimensions are defined” by an independent source such as contract or
state law. Cleveland Bd. of Educ. v. Loudermill, 

, 538 (1985).
Depending on the relevant contract or state law a person may have a property
interest in continued employment. See id.; Texas Faculty 

. For example, a tenured public university professor has such an interest.
See Jones v. Louisiana Bd. of Sup’rs of Univ. of Louisiana Sys., 

,
236 (5th Cir. 2015).    Under Louisiana law, so do civil service employees.
AFSCME, Council # 17 v. State ex rel. Dep’t of Health & Hosps., 

, 1267–68 (La. 2001); Vanderwall v. Peck, 129 F. App’x 89, 91 (5th Cir.
2005).
      The summary judgment ruling turns on whether Maurer was in a civil
service position, or at least whether he raises a factual dispute about that
question.   All fire protection districts operating a “regularly paid fire
department” must establish a classified civil service system. LA. CONST. art.
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10 § 16; see also LA. R.S. § 33:2535 (creating in each “fire protection district, a
classified civil service embracing the positions of employment, the officers, and
employees of . . . fire protection districts”). A fire chief is a civil service position
if “the right of employee selection, appointment, supervision, and discharge” is
vested in the fire protection district or in an officer or employee of the district.
LA. R.S. § 33:2541(A). 2
       In concluding as a matter of law that Maurer’s position was not a civil
service position, the district court properly considered Louisiana Revised
Statute section 33:2541, but it also followed Defendants’ suggestion to give
weight to a different test. It examined whether Maurer was an employee of
the District under Louisiana’s general test for determining the existence of an
employer-employee relationship. 

–62 (citing
Harrington v. Hebert, 

, 653 (La. App. 3 Cir. 2001)). But the
statute defining civil service status refers to “positions,” not employees, for



       2  An initial question is whether the District was operating a regularly paid fire
department. Defendants did not move for summary judgment on this ground, so we assume
the District was operating such a department. Indeed, courts agree that a Louisiana fire
district operates a regularly paid fire department if it employs even one employee in
firefighting, so Crocker’s job as Fire Administrator seems to satisfy that requirement. See
Ballard v. Livingston Parish Fire Prot. Dist. No. 5, 

, 314 (La. App. 1 Cir. 2012);
France v. E. Cent. Bossier Fire Prot. Dist. No. 1, 

(La. App. 2 Cir. 2009). This
question not disputed here—about whether a defendant was operating a “regularly paid fire
department”—is often the focus of Louisiana cases determining whether a person in a fire
services position was entitled to due process. See, e.g., 

. In
addressing that question, the cases have to consider whether a district employs regularly
paid employees. See, e.g., id.; Marshall v. W. Baton Rouge Parish Fire Prot. Dist. No. 1, 

(La. 2009); Heintz v. City of Gretna, 

, 927–28 (La. App. 3 Cir. 1996).
But those cases do not address the separate question that was the basis for the district court’s
ruling: whether, assuming the District was operating a regularly paid fire department,
Maurer held a civil service position.
        Also not dispositive is a case Maurer emphasizes, Wilcox v. Terrytown Fifth Dist.
Volunteer Fire Dept., Inc., 

(5th Cir. 1990). That case addressed whether a
nonprofit corporation providing fire services under contract with a fire district was a “public
agency” under the Fair Labor Standards Act. 

Whether an entity is a public
agency is a different question from whether a particular position is part of the classified civil
service.
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                                  No. 16-30673
which the District has the power of selection, appointment, supervision, and
discharge. LA. R.S. § 33:2541. When a statute provides criteria directed to
answering a specific question—in this case whether Maurer’s position was a
civil service one—that should control over general standards developed for
different situations. See Antonin Scalia & Bryan A. Garner, READING LAW
183–88 (2012). Indeed, Defendants conceded at oral argument that Louisiana’s
general   framework     for   determining      whether   an    employer/employee
relationship exists is not controlling.
      To be sure, the test Louisiana courts apply to determine whether an
employer/employee relationship exists looks to some of the same factors as the
statutory test for deciding whether a position is a civil service position. But
there are also differences. Compare 

(looking to
selection and engagement, payment of wages, power of dismissal, and power of
control), with LA. R.S. § 33:2541 (focusing on the right to selection,
appointment, supervision, and discharge).         The general test focuses on
payment of wages and power of control, as opposed to the right to supervise.
The distinct Harrington framework led the district court to emphasize these
different factors. 

–62.
      The proper inquiry focuses narrowly on section 33:2541: whether the
District had the right to select, appoint, supervise, and discharge the fire chief
for the Independence Volunteer Fire Department. There are factual disputes
on these material issues.     Regarding selection and appointment, there is
evidence that Crocker, as incoming Administrator for the District, selected
Maurer as chief, and that the District’s Board of Commissioners approved his
hire. The contract itself specifies that any hire by a volunteer department—
including a fire chief—must be ratified by the District.
      There is also evidence the District had the authority to supervise
Maurer. The contract says that Maurer was required to comply with the
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                                     No. 16-30673
District’s detailed code of conduct and policies. If he did not, the District had
the authority to punish him. The contract required that any complaint about
any member of a volunteer department be forwarded to Crocker, who was
authorized to conduct an investigation in compliance with the District’s
complaint resolution procedure and take appropriate disciplinary action. The
contract also shows Maurer was required to seek District approval before
making large purchases or hiring employees.              Defendants emphasize the
District did not exercise its authority by refusing to approve any hire Maurer
wanted to make. But even if the District did not exercise the right in negative,
that does not mean it lacked the authority to do so. Having a right and
exercising it are two different things.            Similarly, whether the District
supervised hiring only for budgetary reasons, as Defendants assert, is beside
the point. Section 33:2541 considers only the right to supervise, not the reason
that power exists.
       Finally, there is evidence that Crocker and the District had the right to
discharge Maurer. Some evidence indicates they exercised that right and were
involved in the decision to discharge him. But again, regardless of any actual
involvement, it is enough that the contract gives the District the right to make
a binding decision that Maurer be terminated. LA. R.S. § 33:2541.
      With the contract considered as part of the summary judgment record,
the evidence is thus sufficient to preclude summary judgment on the question
whether Maurer was a member of the Louisiana civil service and entitled to
due process before losing his job. 3 The parties do not address, so we do not
decide, whether the civil service question is ultimately one for a judge or jury


      3  Maurer claims his property interest also derives from the contract between the
District and the Volunteer Department and from Louisiana’s Firefighter Bill of Rights. LA.
R.S. § 33:2181. As we conclude summary judgment is inappropriate because of factual issues
regarding whether Maurer was employed in a civil service position, we do not address
whether those sources create a property interest protected by the Due Process Clause.
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to decide. At a minimum, however, there are disputed issues concerning the
District’s authority to select, appoint, supervise, and discharge the fire chief
that a factfinder needs to answer.
                                     ***
      We therefore REVERSE the judgment of the district court and REMAND
for further proceedings consistent with this opinion.




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