IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20292

PETER J. PASKE, JR., 

 Plaintiff - Appellant

v.

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

Appeal from the United States District Court 

for the Southern District of Texas

Before DAVIS, JONES, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

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 

United States Court of Appeals

Fifth Circuit

FILED

May 4, 2015

Lyle W. Cayce

Clerk

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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 cityissued 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 

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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 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 Meeting1 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,]

1 COMPSTAT meetings are modeled after a program pioneered by Police 

Commissioner William Bratton during his first term with the New York City Police 

Department. In the New York model, precinct commanders are expected to “appear before 

the department’s top echelon to report on crime in their districts and what they are doing 

about it.” James J. Willis, Stephen D. Mastrofski & David Weisburd, Making Sense of 

COMPSTAT: A Theory-Based Analysis of Organizational Change in Three Police 

Departments, 41 LAW & SOC’Y REV. 147, 147-48 (2007).

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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 

2 The Department later determined that Paske’s reference to his superior officers as 

“she” and “he” was disrespectful and violated the Department’s policies.

3 In May 2011, Paske volunteered to lead upcoming COMPSTAT Meetings. Paske 

believed his agreement to lead COMPSTAT Meetings was contingent on his agreement to fill

a special operations role, which he later chose not to take on. Captain John Bailey (“Bailey”)

was the officer generally responsible for leading COMPSTAT Meetings during the relevant 

time period. He averred that there was some discussion in May 2011 about Paske co-leading 

the June 2011 COMPSTAT meeting, but that he later heard Paske was going to be out-oftown on the date of the June meeting. Bailey stated that before the July meeting, no one

suggested that Paske was supposed to lead the meeting, even when he sent e-mails to 

Fitzgerald and others making clear that he would lead the meeting as usual. Bailey further 

averred that the July 2011 meeting “went forward as usual,” and that “[n]obody, not Chief 

Fitzgerald and not anyone else, ever once asked why Sgt. Paske was not at the front of the 

room running the meeting. Nothing unusual happened in the meeting.”

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statements, made to me and/or anyone during the COMPSTAT meeting today.” 

He urged the officers to “be as specific as possible.”

On July 21, the Department officially charged Paske with disobeying 

orders and using inappropriate language and suspended him during the 

investigation. A week later, Fitzgerald called Paske to a meeting (the 

“Punishment Meeting”). Fitzgerald informed him that he was adopting the 

investigator’s recommendation and imposing an 80-hour suspension without 

pay. Fitzgerald also went above the investigator’s recommendation and 

demoted Paske to “patrol” with a commensurate decrease in salary. Due to his 

relocation in the Department’s command structure, when Paske returned to 

work after his suspension, he reported to Merritt. 

Almost immediately after Paske’s return, Merritt imposed a 

“Performance Improvement Plan” (“PIP”) on him, this time for his allegedly 

“unacceptable behavior” during the Punishment Meeting. The official notice 

stated that, during the Punishment Meeting, Paske “became visibly tense, [his] 

face became red, [he] tightened [his] body and fists, and began shaking [his] 

legs.” It further charged that he “began to stare off to the left while shaking 

[his] head.”4 As part of the PIP, the Department ordered Paske to undergo a 

vocational evaluation, which the parties refer to as an employee assistance 

program (“EAP”).

The EAP sessions were coordinated by a team of vocational experts. 

Those experts referred their cases to third-party counselors who actually 

conducted the sessions. A high-ranking officer in the Department called the 

EAP coordinator and characterized Paske’s alleged behavior during the 

Punishment Meeting as threatening. After Paske told the third-party 

4 Officer Paske provided testimony contradicting these allegations. We mention these 

charges to explain the rationale the Department adopted for imposing the PIP, not because 

we accept their veracity.

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counselor during his first EAP session that he had lost weight and struggled 

with his blood pressure, the EAP coordinator reviewing Paske’s file 

recommended to the counselor that Paske be tested for drug use. The counselor 

resisted ordering a drug test. A short time later, a high-ranking officer in the 

Department called the EAP coordinator, this time alleging that Paske had lied 

to the third-party counselor when he said he was taking a week’s vacation.5

After receiving this additional information, the third-party counselor relented 

and agreed to order Paske to undergo drug testing after the second EAP 

counseling session. The Department arranged for the counselor to give Paske

a letter at the end of the session ordering him to report to the Department

immediately for testing. 

On the morning of the second EAP session, Paske had arranged for his 

mother-in-law to care for his children. Before Paske left for the session, his 

mother-in-law was hit by a car and seriously injured. Paske knew he was

already in trouble with Fitzgerald, so he decided to leave his infant with a 

neighborhood acquaintance and his older children unattended at home while 

he went to the second EAP session. He informed his direct supervisor of his 

mother-in-law’s injury and asked him to inform higher-ups of the family 

emergency. When the counselor informed Paske about the drug testing 

requirement, he thought she would conduct the testing. The counselor testified 

that Paske was willing to undergo testing. When he learned that the 

Department would coordinate the testing, however, he told the counselor that 

he feared they would falsify the results to justify his dismissal. After leaving 

the EAP session, Paske called a high-ranking supervisor and told him about 

his family emergency. Within a few minutes, Fitzgerald called Paske directly 

5 It appears that Paske did not lie about vacation. The vacation time was pre-approved 

by Paske’s immediate supervisors.

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and ordered him to report to the Department within an hour. Paske told 

Fitzgerald that he “could not” obey the order. Fitzgerald later testified that he 

“knew when [he] decided not to go to the police department it was the wrong 

decision.” Fitzgerald terminated Paske later that day.

Paske sued the Government, asserting claims for: First Amendment 

retaliation6; Title VII race discrimination; Title VII race retaliation; and 

related state law claims. The district court granted the Government’s motion 

for summary judgment in part, dismissing all of Paske’s federal claims. The 

district court severed Paske’s state law claims and, choosing not to exercise 

supplemental jurisdiction, remanded them to state court. The district court 

also granted the Government’s motion to exclude certain testimony offered by 

Paske and Bailey. Paske appeals the district court’s evidentiary determination 

and its dismissal of his federal claims.

STANDARD OF REVIEW

This court reviews a district court’s grant of summary judgment de novo. 

Avakian v. Citibank, N.A., 773 F.3d 647, 650 (5th Cir. 2014). “In reviewing the 

district court’s grant of summary judgment, we must view all the disputed facts 

and reasonable inferences in a light most favorable to the non-movant. . . .” 

Branton v. City of Dallas, 272 F.3d 730, 738-39 (5th Cir. 2001). We review a 

district court’s decision to strike summary judgment evidence for an abuse of 

discretion. See, e.g., Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). “An 

abuse of discretion occurs only when all reasonable persons would reject the 

view of the district court.” Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 

F.3d 632, 638 (5th Cir. 2012).

6 The district court assumed that Paske brought this claim under 42 U.S.C. § 1983.

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DISCUSSION

I.

The district court granted the Government’s motion to strike evidence in 

part, excluding portions of Paske and Bailey’s testimony. Paske generally 

contends that his and Bailey’s statements are admissible under various rules 

of evidence. Having considered the various statements and the relevant rules 

of evidence, we agree with the district court that the statements lacked 

foundation. See Paske, 2014 WL 1366552, at *5-6. It follows that Paske cannot 

show that all reasonable persons would reject the district court’s decision to 

strike the testimony.

Accordingly, we affirm the district court’s decision to strike portions of 

Paske and Bailey’s testimony.

II.

The district court dismissed Paske’s First Amendment retaliation claim.

It explained that Paske’s speech was “confined to his on-duty statements made 

to superior officers within the department itself regarding the department’s 

inner workings and urging [his] direct and implied complaints and criticisms 

about Merritt and Chief Fitzgerald.” Id. at *8. Based on this view of the 

uncontested evidence, the district court held that Paske spoke as an employee, 

not as a citizen. Id. We affirm for the same reason.

A. 

To establish a prima facie First Amendment retaliation claim, a public 

employee must show, inter alia, that he spoke as a citizen, and not as a public 

employee. See Lane v. Franks, 134 S. Ct. 2369, 2378-80 (2014).7 In deciding 

7 Lane did not alter the test established in Garcetti v. Ceballos, 547 U.S. 410 (2006). 

See Graziosi v. City of Greenville, Miss., 775 F.3d 731, 737 n.7 (5th Cir. 2015). The 

Government submitted a letter brief pursuant to Federal Rule of Appellate Procedure 28(j). 

It cited Graziosi and Gibson v. Kilpatrick, 773 F.3d 661 (5th Cir. 2014), and stated that these 

cases “provide additional authority in support of Appellees’ position.” We remind counsel that 

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whether a public employee speaks as a citizen or as a public employee, “[t]he 

critical question . . . is whether the speech at issue is itself ordinarily within 

the scope of an employee’s duties, not whether it merely concerns those duties.” 

Lane, 134 S. Ct. at 2379. When speech-related “[a]ctivities [are] required by 

one’s position or undertaken in the course of performing one’s job[ ],” they are 

within the scope of the employee’s duties. Haverda v. Hays County, 723 F.3d 

586, 598 (5th Cir. 2013). In contrast, if the speech-related activities are “the 

kind . . . engaged in by citizens who do not work for the government,” they are 

protected. Garcetti, 547 U.S. at 423.

B.

Paske was invited to the Supervisor Meeting in his role as a police officer, 

his attendance was part of his job, and he spoke in response to an invitation 

from Fitzgerald for job-related questions. Moreover, by participating in 

internal discussions about the Department’s operations, Paske “contribut[ed]

to the formation and execution of official policy.” Mills v. City of Evansville, 

Ind., 452 F.3d 646, 647-48 (7th Cir. 2006) (holding that on-duty, in-uniform 

police officer who spoke to senior managers as they emerged from meeting 

spoke in her capacity as a public employee), cited with approval in Williams v. 

Dall. Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir. 2007). We also note that 

private citizens do not generally have the right to participate in closed-door 

meetings of ranking police officers. Considering the facts as demonstrated by 

the record as a whole, the district court did not err when it held that Paske 

spoke at the Supervisor Meeting as an employee, not a citizen, and that his 

speech was thus not protected by the First Amendment.

Rule 28(j) briefs “must state the reasons for the supplemental citations, referring either to 

the page of the brief or to a point argued orally.” Fed. R. App. P. 28(j).

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Accordingly, we affirm the judgment of the district court regarding 

Paske’s First Amendment retaliation claim.

III.

The district court dismissed Paske’s Title VII race discrimination claim. 

See 42 U.S.C. § 2000e-2(a)(1) (prohibiting race discrimination in employment). 

The district court held that Paske failed to “present[ ] evidence sufficient to 

raise a genuine issue of material fact that ‘he was treated less favorably 

because of his [race] than were other similarly situated employees who were 

not [white], under nearly identical circumstances.’” Paske, 2014 WL 1366552, 

at *11 (second and third alterations in original) (quoting Lee v. Kan. City S. Ry. 

Co., 574 F.3d 253, 259 (5th Cir. 2009)). We affirm for the same reason.

Because Paske attempted to prove race discrimination through 

circumstantial evidence, the McDonnell Douglas burden-shifting framework 

governs his claim. See Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 

F.3d 408, 411-12 (5th Cir. 2007) (discussing modified McDonnell Douglas

framework used in this circuit). To establish his prima facie case, Paske must 

show that

(1) he is a member of a protected class, (2) he was qualified for the 

position at issue, (3) he was the subject of an adverse employment 

action, and (4) he was treated less favorably because of his 

membership in that protected class than were other similarly 

situated employees who were not members of the protected class, 

under nearly identical circumstances.

Lee, 574 F.3d at 259. Paske established the first three elements of his prima 

facie race discrimination claim. To establish the fourth element, Paske was 

required to show, inter alia, that his “conduct that drew the adverse 

employment decision [was] ‘nearly identical’ to that of the proffered 

comparator who allegedly drew dissimilar employment decisions.” Lee, 574 

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F.3d at 260 (quoting Perez v. Tex. Dep’t of Criminal Justice, Inst. Div., 395 F.3d 

206, 213 (5th Cir. 2004)).8

Paske offers Merritt and another officer as comparators. Paske makes 

various allegations concerning Merritt, including: that she lied about the hours 

she worked for the City in early 2010; that she allowed her daughter’s friends, 

who were known gang members, to stay at her house; that she was bad at her

job; and that she lied when she requested funeral leave. Paske contends that 

the other officer: left his service revolver unsecured in his car, from which it 

was stolen; failed to report the theft; and then carried an unapproved, personal 

firearm while on duty. Paske was fired for failing to obey a lawful order, for 

refusing the drug test, for dereliction of duty, and for conduct unbecoming an 

officer. Even assuming Paske’s allegations about Merritt and the other officer 

are true,9 their behavior is not even close to being “nearly identical” to Paske’s.

Because Paske failed to adduce evidence that a comparator was treated 

more favorably under nearly identical circumstances, he failed to establish a 

prima facie case of race discrimination. Accordingly, we affirm the judgment of 

the district court regarding Paske’s race discrimination claim.

8 Paske argues that he can establish the fourth element of his prima facie claim by 

showing that Fitzgerald’s stated reasons for firing him were pretextual. That is not the law. 

First, Paske must establish a prima facie case by pointing to an appropriate comparator. 

Only then would Fitzgerald and the City have a duty to “offer an alternative nondiscriminatory explanation for the adverse employment action.” Id. at 259. And only after 

they provided that explanation would the pretext issue become relevant. Id. The cases Paske 

cites to support his misplaced pretext argument make abundantly clear that Paske must 

prove a prima facie case as well as pretext to succeed. See, e.g., Reeves v. Sanderson Plumbing 

Prods., Inc., 530 U.S. 133, 148 (2000) (explaining that “a plaintiff’s prima facie case, combined 

with sufficient evidence to find that the employer’s asserted justification is false, may permit 

the trier of fact to conclude that the employer unlawfully discriminated”) (emphasis added)). 9 Some of Paske’s allegations regarding Merritt have never been addressed by a 

factfinder and are not well-supported by the record.

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IV.

The district court dismissed Paske’s Title VII race retaliation claim. See 

42 U.S.C. § 2000e-3(a) (prohibiting retaliation against those opposing unlawful 

race discrimination). Paske argues that the Government never moved for 

summary judgment on his Title VII race retaliation claim, and that the district 

court granted the motion without giving him a chance to respond. The 

Government contends that any error was harmless. 

“We review for harmless error a district court’s improper entry of 

summary judgment sua sponte without notice.” Atkins v. Salazar, 677 F.3d 

667, 678 (5th Cir. 2011). “A district court’s grant of summary judgment sua 

sponte is ‘considered harmless if the nonmovant has no additional evidence or 

if all of the nonmovant’s additional evidence is reviewed by the appellate court 

and none of the evidence presents a genuine issue of material fact.’” Id. 

(quoting Leatherman v. Tarrant Cnty. Narcotics Intel. & Coord. Unit, 28 F.3d 

1388, 1398 (5th Cir. 1994)).

According to Paske’s own recollection of the Supervisor Meeting, he 

asked Fitzgerald simply whether “she was getting demoted and was he getting 

promoted.” Besides Paske’s own racially charged reference to “Klansmen”

during the Supervisor Meeting, there is no evidence in the record that Paske 

spoke out about race discrimination. This court “ha[s] consistently held that a 

vague complaint, without any reference to an unlawful employment practice 

under Title VII, does not constitute protected activity.” Davis v. Dall. Indep. 

Sch. Dist., 448 F. App’x 485, 493 (5th Cir. 2011) (per curiam) (collecting cases). 

Just as in Davis, “[t]he only racial component of the entire . . . interaction was 

interjected by [Paske] [him]self,” id., when he referred to “Klansmen.” Paske 

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“cannot rely upon [his] own use of a racially sensitive word to demonstrate that 

[his] accusation had racial overtones.” Id.10

We assume that the district court dismissed Paske’s race retaliation 

claim sua sponte and without notice. Even so, we hold that the district court’s 

dismissal was harmless and affirm the district court’s judgment.

CONCLUSION

For the reasons explained, we AFFIRM the judgment of the district 

court.

10 Paske argues that Fitzgerald and the City waived their arguments, citing Martco 

Ltd. Partnership v. Wellons, Inc., 588 F.3d 864 (5th Cir. 2009). Martco applies when a 

summary judgment movant urges the court of appeals to affirm a district court’s order for a 

reason not urged below. Id. at 877. Martco does not apply when we evaluate whether a district 

court’s sua sponte summary judgment order was harmless. See Atkins, 677 F.3d at 678.

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