IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-30673

DAVID S. MAURER,

 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

United States Court of Appeals

Fifth Circuit

FILED

September 5, 2017

Lyle W. Cayce

Clerk

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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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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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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., 174 F.3d 661, 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., 705 F.3d 531, 535 (5th Cir. 2013) (quoting Knight v. Kirby 

Inland Marine, Inc., 482 F.3d 347, 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, 859 F.3d 353, 

355 (5th Cir. 2017); LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 

530, 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, LLC, 835 F.3d at 534

(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., 148 F. Supp. 3d 555, 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, 207 F.3d 732, 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, 2012 WL 2792435, 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., 742 F. Supp. 2d 568, 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., 974 F.2d 646, 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 Curtis, 174 

F.3d at 667 (explaining that the remedy for an erroneous evidentiary ruling at 

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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., 832 F.3d 

224, 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, 946 F.2d 379, 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, 470 U.S. 532, 538 (1985). 

Depending on the relevant contract or state law a person may have a property 

interest in continued employment. See id.; Texas Faculty Ass’n, 946 F.2d at

379. For example, a tenured public university professor has such an interest. 

See Jones v. Louisiana Bd. of Sup’rs of Univ. of Louisiana Sys., 809 F.3d 231, 

236 (5th Cir. 2015). Under Louisiana law, so do civil service employees. 

AFSCME, Council # 17 v. State ex rel. Dep’t of Health & Hosps., 789 So. 2d 

1263, 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. Maurer, 148 F. Supp. 3d at 561–62 (citing 

Harrington v. Hebert, 789 So. 2d 649, 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, 91 So.3d 311, 314 (La. App. 1 Cir. 2012);

France v. E. Cent. Bossier Fire Prot. Dist. No. 1, 4 So.3d 959 (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., Ballard, 91 So. 3d at 414. 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, 998 

So.2d 85 (La. 2009); Heintz v. City of Gretna, 683 So.2d 926, 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., 897 F.2d 765 (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. Id. at 765–66. 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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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 Harrington, 789 So. 2d at 653 (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. Maurer, 148 F. Supp. 3d at 561–62. 

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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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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