IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

THEODORE J. GERARDI §

§

 Plaintiff, §

§

V. § Civil Action No. 4:05-CV-183-Y

§

CITY OF WATAUGA, TEXAS §

§

 Defendant. §

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Pending before the Court is Defendant’s motion for summary judgment [doc. # 35], filed

December 22, 2005. After consideration of the motion, the response, and the reply, the Court

GRANTS the motion. 

I. BACKGROUND

Plaintiff Theodore J. Gerardi was hired as a public-safety officer by defendant City of

Watauga, Texas (“the City”), in 1982. On his employment application, Gerardi stated that he

had never been arrested, detained by police, or summoned into court. The application warned

that any willful misrepresentations, omissions, or falsifications could be grounds for immediate

dismissal. (Def.’s App. at 2.)

In August 2004, City Manager Kerry Lacy determined that the City should begin to

conduct criminal-background checks on all employees of the City’s Department of Public Safety

(“DPS”). Lacy asked Lieutenant Philip Adams to instruct David Shertzer, the communications

director, to perform background checks on all public-safety officers in the DPS. The checks

revealed that five of the DPS employees had evidence of criminal conduct on their records. Of

 

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The check revealed that Gerardi had been arrested in 1970 for theft and

in 1972 for impersonating a police officer and defrauding an innkeeper. (Def.’s

App. at 24.)

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those five, Gerardi was the only DPS employee whose criminal conduct occurred before his

employment and who failed to disclose his criminal record on his employment application.1

Because DPS had just hired David Van Laar to be the new DPS director, Lacy decided to allow

Van Laar to make the decision what disciplinary action should be taken. In September, Lacy

gave Van Laar a copy of Gerardi’s personnel file, which included Gerardi’s employment

application and the results of the criminal-background check, and told Van Laar that he need to

make a decision on how to proceed. (Def.’s App. at 29-30.)

On October 12, 2004, Van Laar held a closed meeting between himself and the City’s

public-safety officers to allow the officers to express any concerns and ask questions. During

the meeting, Gerardi asked Van Laar how he was going to handle problems with his command

staff: “Chief by this time you should be aware that your entire command staff is comprised

primarily of a pack of thieves and liars. We are wondering what you intend to do about that,

and if so, when?” (Def.’s App. at 71.) Gerardi asserts that Van Laar turned red, looked down,

paused for about six minutes, looked up angrily, and told Gerardi that they could discuss his

statement later. (Pl.’s App. at 71.) Van Laar states that he merely told Gerardi that he would

discuss the matter with him later in private. (Def.’s App. at 2.) Gerardi asked Van Laar if he

was approachable, and Van Laar said he was. Gerardi then asserted that the officers should be

protected from bad publicity:

Chief, you have the opportunity, walking into a department that has a tremendous

amount of talented people. They go out into this community and they do their

jobs day in and day out, and for the most part, we are being berated by that same

community because of newspaper articles that’s just blasting us, and it’s unfair

 

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Beck was the human-resources director for DPS.

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In 1982, Keating was a captain with the DPS and was later named chief.

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that the people causing us to be blasted in the paper are the – are the ones that

keep making the same mistakes and that come to work every day and get in their

carpeted offices without any windows and don’t have to take the abuse from the

public that we’re taking, and it’s not fair. (Pl.’s App. at 71.)

Van Laar told Gerardi that it was his job to deal with any negative publicity. Gerardi disputed

this: “No sir, it is not our job . . . we have to keep our business straight . . . we have to protect

the best image that we know how with the tools that we have.” (Pl.’s App. at 74.) Van Laar did

not respond and moved on to the next question.

On October 18, Van Laar called a meeting with Clifton Beck,2 Adams, and Gerardi to

discuss Gerardi’s nondisclosure of his criminal record. Van Laar told Gerardi about the problem

with his nondisclosure in his employment application, that such failure was grounds for

discharge, and that Gerardi had ten days to state in writing why he had failed to disclose his prior

criminal record. Gerardi claims that he tried to discuss his comments from the October 12

meeting with Van Laar, but that Van Laar would not allow it. (Pl.’s App. at 73, 78.) Seven days

later, Gerardi gave Van Laar a letter, explaining that at the time he completed his application,

Bill Keating3 told him to indicate that he had no criminal history. (Def.’s App. at 26.) When the

City’s attorney, Mark Daniel, contacted Keating to verify Gerardi’s story, Keating vigorously

denied telling Gerardi to falsify his application. (Def.’s App. at 46.) After Daniel told Van Laar

of the denial, Van Laar decided to fire Gerardi. (Def.’s App. at 5.)

On October 28, Van Laar called Gerardi to his office and told him that his employment

was being terminated effective November 1, 2004, but that he could resign by 10:00 a.m. the

next day. (Def.’s App. at 5-6.) Gerardi asserts that he again tried to discuss his previous

 

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comments about DPS’s command staff, but that he was rebuffed. (Pl.’s App. at 78.) Van Laar

claims that Gerardi never approached him after the October 12 meeting to discuss his comments.

(Def.’s App. at 6.) The next day, Gerardi submitted a written notice of retirement, effective

November 1, 2004. (Def.’s App. at 28.)

On January 10, 2005, Lacy received a letter from Gerardi’s lawyer stating that Gerardi

was seeking reinstatement and wanted to invoke the appellate procedures provided for in the

City’s personnel manual. (Def.’s App. at 34.) On January 18, Daniel informed Gerardi’s

counsel that there were no appellate procedures applicable to an employee who had resigned;

thus, there would be no appellate-review hearing. (Def.’s App. at 48.) On February 2, Gerardi

filed suit against the City, alleging violations of the Texas Whistleblower Act and of his right to

free speech under the United States and Texas Constitutions.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record establishes “that there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(c). The party moving for summary judgment has the initial burden of

demonstrating that it is entitled to a summary judgment. See Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). But the moving party need not produce evidence showing the absence of an

issue of fact with respect to an issue on which the nonmovant bears the burden of proof. Rather,

the moving party need only point out that the evidentiary documents in the record contain

insufficient proof concerning an essential element of the nonmovant's claim. See id. at 323-25.

When the moving party has carried its summary judgment burden, the nonmovant must

go beyond the pleadings and by its own affidavits or by the depositions, answers to

 

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interrogatories, or admissions on file set forth specific facts showing that there is a genuine issue

for trial. FED. R. CIV. P. 56(e). This burden is not satisfied with some metaphysical doubt as to

the material facts, by conclusory allegations, by unsubstantiated assertions or by only a scintilla

of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). If the evidence is

merely colorable or is not significantly probative, summary judgment may be granted. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).

In making its determination on the motion, the Court must look at the full record in the

case. FED. R. CIV. P. 56(c); see Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988).

Nevertheless, Rule 56 “does not impose on the district court a duty to sift through the record in

search of evidence to support a party’s opposition to summary judgment.” Skotak v. Tenneco

Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir.), cert. denied, 506 U.S. 825 (1992). Instead,

parties should “identify specific evidence in the record, and . . . articulate the ‘precise manner’ in

which that evidence support[s] their claim.” Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.

1994). 

III. DISCUSSION

A. FIRST-AMENDMENT CLAIM

Gerardi asserts that the City unlawfully fired him in retaliation for exercising his

constitutionally-protected, first-amendment rights during the October 12 meeting. Section 1983

provides a civil remedy in federal court for violations, under color of state law, of a person’s

constitutionally recognized rights, privileges, or immunities. See 42 U.S.C.A. § 1983 (West

2003); see Findeisen v. N. E. Indep. Sch. Dist., 749 F.2d 234, 236-37 (5th Cir. 1984). Municipal

liability under § 1983 requires proof of (1) an official policy or practice or an isolated decision

 

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Gerardi argues that Lacy’s authority as city manager to fire Gerardi

imposes municipal liability. But, Lacy did not make the decision to fire

Gerardi. 

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by a policymaker who is vested with final policymaking authority and (2) a violation of

constitutional rights whose moving force is the policy or custom. Rivera v. Houston Indep. Sch.

Dist., 349 F.3d 244, 247 (5th Cir. 2003). In its response, Gerardi does not argue that there was an

official policy or practice; thus, this Court will focus on whether there was an isolated decision

by an authorized policymaker. 

To invoke § 1983 liability, an isolated decision must be made by an authorized

policymaker in whom final authority rested regarding the action ordered. Cozzo v. Tangipahoa

Parish Council-President Gov’t, 279 F.3d 273, 289 (5th Cir. 2002). Thus, Gerardi must prove

that Van Laar, as the employee who made the decision to fire him, was vested with final

policymaking authority over such a decision. See City of St. Louis v. Praprotnik, 485 U.S. 112,

123 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469, 483 n.12 (1986) (plurality op.). 

Gerardi has produced no evidence to show that Van Laar held final policymaking

authority over the decision to fire Gerardi. The City’s charter states that all determinations of

policy matters are vested in the city council and further vests the council with authority to

establish qualifications, rules, and standards for all city employees. (Def.’s App. at 41-42.) All

of the City’s policies regarding the termination of city employees are in the City’s personnel

manual. (Def.’s App. at 6, 31.) A department head—such as Van Laar—could supplement a

personnel rule, but approval must be given by the city manager. (Pl.’s App. at 9.) The personnel

manual provides that disciplinary action is the responsibility of the immediate supervisor.

(Def.’s App. at 36.) The city manager has the final authority to fire any employee of the City.4

 

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Although this ground alone is sufficient to find the City is entitled to

summary judgment on Gerardi’s First-Amendment claim, the arguments raised by the

City regarding the lack of public concern in Gerardi’s statements are compelling.

Summary judgment would likewise be appropriate on this basis.

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(Pl.’s App. at 6.) Although Van Laar may have had the discretion to fire Gerardi, this does not

give rise to municipal liability based on the exercise of that discretion. See Pembaur, 475 U.S. at

481-83 & n.12. Van Laar was not responsible for establishing final governmental policy

regarding firing DPS employees; thus, he did not have final policymaking authority. See id.

Although a governmental body can delegate policymaking authority, evidence that Van Laar had

discretion falls short of showing the required level of delegation. See Bennett v. City of Slidell,

728 F.2d 762, 769 (5th Cir. 1984). There is no evidence that the council delegated any authority

to Van Laar to set goals and to structure and design the termination policies of DPS employees.

See id. Thus, imposing municipal liability on the City would be inappropriate in these

circumstances.5

 

B. WHISTLEBLOWER CLAIM

Gerardi asserts the City unlawfully fired him in retaliation for reporting violations of the

law. To prevail on a retaliation claim under the Texas Whistleblower Act, a plaintiff must allege

that (1) the plaintiff was a public employee, (2) the plaintiff acted in good faith in making a

report, (3) the report involved a violation of law by the agency or a public employee, (4) the

report was made to an appropriate law-enforcement authority, and (5) the plaintiff suffered

retaliation for making the report. TEX. GOV’T CODE ANN. §§ 554.002(a) (Vernon 2004). To

timely bring such a claim, an alleged whistleblower must bring suit no later than the 90th day

after the date on which the alleged violation either occurred or was discovered by the employee

 

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Hohman, 6 S.W.3d at 772-73.

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through reasonable diligence. Id. § 554.005 (Vernon 2004). The period is tolled during the time

that the employee initiates action under the grievance or appeal procedures of the employing

governmental entity. Id. § 554.006(c) (Vernon 2004). Here, the parties agree that Gerardi’s

limitations period began on October 28, 2004, and that Gerardi filed suit 97 days later on

February 2, 2005. Gerardi asserts that the limitations period was tolled during the eight days he

attempted to appeal his constructive discharge. The City argues, however, that this attempt to

appeal Gerardi’s resignation was ineffective to toll the limitations period because the grievance

procedures were inapplicable to an employee who resigned. 

The City’s grievance procedures were clear: an employee may appeal a termination

decision. There was no grievance procedure for an employee who resigned. (Def.’s App. at 38,

48.) There is no ambiguity in the grievance procedure. Gerardi cannot create an ambiguity by

unilaterally invoking a nonexistent grievance procedure. Cf. Univ. of Tex. Med. Branch at

Galveston v. Hohman, 6 S.W.3d 767, 775 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d

w.o.j.) (holding when it is unclear whether the employer has any post-termination grievance

procedure or it is unclear what the procedure is, terminated employees who timely invoke

grievance procedure have adequately tolled the limitations period); Beiser v. Tomball Hosp.

Auth., 902 S.W.2d 721, 724 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (stating

limitations did not bar terminated employee’s suit when communications with employer created

uncertainty as to availability or applicability of grievance procedures). Although a constructive

discharge is equivalent to a termination under the Whistleblower Act,6

 this Court agrees with the

City that this does not transform Gerardi’s resignation into a termination for purposes of the

 

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City’s grievance procedures. Because there is no evidence that the City created an ambiguity in

its grievance procedures, Gerardi’s attempt to appeal his retirement did not render his claim

timely filed. The City is entitled to summary judgment.

IV. SUMMARY

Because there is no evidence that Van Laar had final policymaking authority in order to

impose municipal liability and because Gerardi did not timely file his whistleblower claim, the

City is entitled to judgment as a matter of law.

SIGNED June 7, 2006.

 

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