SURFACE v. PACILLAS (2025)

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT CITY OF EL PASO'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF JOHN SURFACE (ECF No. 23)

I. INTRODUCTION

On this day, the Court considered Defendant City of El Paso's (“Defendant El Paso”) “Motion for Summary Judgment on Plaintiff John Surface's Claims and Brief in Support” (“Motion”), filed on March 4, 2025, ECF No ¹ . 23. Therein, Defendant El Paso moves this Court to grant “summary judgment on Plaintiff Surface's claims for (1) Title VII Discrimination, (2) Title VII Retaliation, (3) Section 1981 Race Discrimination, and (4) Violations of Section 1983.” Id. at 20. Plaintiff John Surface (“Plaintiff Surface”) responded to the instant motion on April 15, 2025. See Resp., ECF No. 26. Finally, Defendant El Paso replied to Plaintiff Surface's response on April 22, 2025. See Reply, ECF No. 28. Defendant El Paso argued that Plaintiff Surface “fail[ed] to identify any evidence that would permit a reasonable fact finder to conclude his termination was motivated by racial animus, or that [Plaintiff] Chavez's termination was done to otherwise justify Surface's termination.” Id. at 2. Having considered the arguments and exhibits provided by both parties, this Court finds that Plaintiff Surface has failed to establish a genuine issue of material fact as to his claims and therefore grants Defendant El Paso's “Motion for Summary Judgment on Plaintiff John Surface's Claims and Brief in Support,” ECF No. 23. The Court will now address the underlying arguments in turn.

II. FACTUAL BACKGROUND

Plaintiff Surface was originally hired by the Department in 2004. Mot. Summ. J. 2, ECF No. 23. Plaintiff Surface was promoted to Detective with the Department in 2009, and then was eventually promoted to Lieutenant in 2016. Compl. 2, ECF No. 1. At the time of his termination, Plaintiff Surface held the position of Lieutenant with the Department. Mot. Summ. J. 2, ECF No. 23. In June 2023, the interim chief of the Department ordered all employees of the Department to participate in a sexual harassment training session. Compl. 2, ECF No. 1. Plaintiff Surface allegedly expressed to the interim chief that he disagreed with the reason multiple sexual harassment trainings were being held. Id. at 2—3.

At the same time these sexual harassment trainings were being held, two female officers, Officer Rose Ibarbo (“Officer Ibarbo”) and Sergeant Ashley Pagitt (“Sergeant Pagitt”) made formal complaints about Plaintiff Surface to the Department's Internal Affairs Department (“LAD”). Mot. Summ. J. 2, ECF No. 23. In her complaint made on June 12, 2023, Officer Ibarbo submitted “copies of [ ] sexually explicit and suggestive text messages she received from Plaintiff Surface” to the IAD. Id. And later on July 26, 2023, Sergeant Pagitt made a statement against Plaintiff Surface and provided the IAD with more “copies of [ ] sexually explicit and suggestive messages she received from Plaintiff Surface.” Id.

During the summer of 2023, Plaintiff Surface, along with his co-plaintiff Adan Chavez were both investigated by the IAD. Mot. Summ. J. 2, ECF No. 23. In August 2023 arrest warrants were issued for both Plaintiffs Surface and Chavez. Compl. 3, ECF No. 1. Both Plaintiffs Surface and Chavez were ultimately arrested for the crime of “official oppression.” Mot. Summ. J. 2, ECF No. 23. “Official Oppression” is a crime under the Texas Penal Code § 39.03. The official language of the crime is as follows:

Sec. 39.03. OFFICIAL OPPRESSION.

(a) A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or

(3) intentionally subjects another to sexual harassment.

(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.

(c) In this section, “sexual harassment” means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.

(d) An offense under this section is a Class A misdemeanor, except that an offense is a felony of the third degree if the public servant acted with the intent to impair the accuracy of data reported to the Texas Education Agency through the Public Education Information Management System (PEIMS) described by Sections 48.008 and 48.009, Education Code, under a law requiring that reporting.

Tex. Pen. Code Ann. § 39.03 (2019).

The IAD investigation was presented to the Department's Discipline Review Board (“DRB”) which “sustained all the allegations made against Plaintiff Surface and voted in favor of his termination.” Id. Following the DRB proceedings, Plaintiff Surface was informed that he would be terminated, and his last day with the Department was on July 3, 2024. Id. at 3. In the end, the El Paso County District Attorney's Office did not move forward with the charges against Plaintiff Surface. Compl. 10, ECF No. 1.

At the heart of this case is the alleged misconduct by, arrest of, and ultimate termination of Plaintiff Surface when he was employed by the El Paso Police Department (“Department”). Plaintiff claims his termination was unlawful, and he experienced discrimination by his employer. He then filed claims for (1) title VII Discrimination, (2) Title VII Retaliation, (3) Section 1981 Race Discrimination, and (4) violations of the First Amendment through Section 1983. Because these are federal causes of action, the Court has subject matter jurisdiction over the claims and can therefore decide them. See U.S. Const. art. III sec. 2.

III. LEGAL STANDARDS

A. Motion for Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure, which governs summary judgment, states that a “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The summary judgment standard “provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247—48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis removed from original). Because not all disputed facts are material, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248, 106 S.Ct. 2505 (citations omitted). “Substantive law will identify which facts are material.” Duckett v. City of Cedar Park, Tex., 950 F.2d 272, 276 (5th Cir. 1992) (citations omitted).

It is not necessary for a court to resolve a disputed fact “conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a judge or jury to resolve the” dispute at trial. Anderson, 477 U.S. at 248—49, 106 S.Ct. 2505. This evidence can take the form of “pleadings, depositions, answers to interrogatories ․ admissions on file” and affidavits. Id. at 247, 106 S.Ct. 2505. However, a nonmoving party need not “produce evidence in a form that would be admissible at trial in order to avoid summary judgment.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[C]ourts are required to view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion.’ ” Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citation omitted).

B. Title VII

The bulk of Plaintiff Surface's claims fall under “Title VII”, otherwise known as Title VII of the Civil Rights Act of 1964 (“Title VII”), codified as law in 42 U.S.C. § 2000e-2(a)(1). The law makes it unlawful for an employer to refuse to hire someone, discriminate against someone, or subject them to disparate treatment based on their “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1); see also Ames v. Ohio Dept. of Youth Sen's., 605 U.S. 303, 308, 145 S.Ct. 1540, 221 L.Ed.2d 929 (2025). Simply alleging Title VII discrimination is not enough. To succeed, an individual alleging a Title VII violation “bears the ‘initial burden’ of ‘establishing a prima facie case’ by producing enough evidence to support an inference of a discriminatory motive.’ ” Ames, 605 U.S. at 308, 145 S.Ct. 1540 (internal citation omitted). This is the first step in what is known as the McDonnell Douglas three-step inquiry, named after the landmark Supreme Court case McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). And for most plaintiffs, this first step is not “onerous.” Ames, 605 U.S. at 309, 145 S.Ct. 1540 (internal citation omitted).

Once the plaintiff has cleared the first step of establishing a prima facie case, “the burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection.” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. “Finally, if the employer articulates such a justification, the [complainant] must then have a “fair opportunity” to show that the stated justification “was in fact pretext” for discrimination.” Ames, 605 U.S. at 309, 145 S.Ct. 1540. For a Court to find a Title VII violation, the plaintiff must support their position with proof, not mere speculation. See McDaniel v. Temple Indep. School Dist., 770 F.2d 1340, 1348 (5th Cir. 1985).

The Court wants to note that “Title VII's disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs.” Id. Rather, the provision “makes it unlawful ‘to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such an individual's race, color, religion, sex, or national origin.” Id. (emphasis removed from the original).

a. Race-based discrimination under Title VII

To establish a prima facie case of race discrimination under Title VII, the plaintiff must show that 1) the plaintiff is a member of a protected group; 2) he was qualified for the position held, 3) he was discharged from the position, and 4) similarly situated employees not in the protected class were treated differently under nearly identical circumstances. Brackens v. Ennis State Bank, 252 F.3d 434 (5th Cir. 2001) (internal citations omitted).

b. Sex-based discrimination under Title VII

To establish a prima facie case of sex discrimination under Title VII, the complainant must show that 1) he is a member of a protected class; 2) he was qualified for his job; 3) despite his qualifications, a decision was made that adversely affected his employment; and 4) either his position was filled by someone of the opposite sex, or members of the opposite sex received more favorable treatment because of their gender. Thornton v. Neiman Marcus, 850 F.Supp. 538, 542 (N.D. Tex. 1994) (citation omitted).

c. Retaliation under Title VII

“Section 704(a) of Title VII expressly prohibits retaliatory conduct.” McDaniel, 770 F.2d at 1347. For a plaintiff to prove a violation of Section 704(a) of Title VII, the plaintiff must first make a prima facie showing that 1) he engaged in an activity protected by Title VII; 2) an adverse employment action occurred; and 3) there was a causal connection between the participation in the protected activity and the adverse employment decision. Id. (internal citations omitted). “The connection required is causation-in-fact or ‘but for’ causation.” Jack v. Texaco Research Ctr., 743 F.2d 1129, 1131 (5th Cir. 1984). “Whether or not there were other reasons for the employer's action, the employee will prevail only by proving that ‘but for’ the protected activity” he would not have been subjected to termination. Id. (emphasis added).

C. Race discrimination under Section 1981

Section 1981 of the Civil Rights Act of 1866 (“Section 1981”) prohibits racial discrimination, both public and private, in the making or enforcement of contracts. See 42 U.S.C. § 1981. To make out a prima facie case of a violation of Section 1981, a plaintiff must show intent to discriminate, more specifically he must show that 1) he is a member of a racial minority; 2) the employer or defendant had intent to discriminate on the basis of race; and 3) the discrimination concerned one or more of the activities enumerated in Section 1981 or 1982. See Hager v. Brinker Texas, Inc., 102 F.4th 692, 700 (5th Cir. 2024) (internal citations omitted). However, “because direct evidence of [racial] discrimination is rare,” the Supreme Court has created an “evidentiary procedure that allocates the burden of production and establishes an orderly presentation of proof in discrimination cases.” Clark v. City of Alexandria, 116 F.4th 472, 486 (5th Cir. 2024).

Under this evidentiary procedure, to show intent, the complainant must show that 1) they are members of a protected group; 2) they were qualified for the position at issue; 3) they were discharged or suffered some adverse employment action by the employer; and 4) they were replaced by someone outside their protected group or were treated less favorably than other similarly situated employees outside the protected group. Id. If a plaintiff makes a prima facie case, the employer may rebut it “by articulating a legitimate, nondiscriminatory reason for its actions.” Id. (internal citations omitted). And finally, if the employer successfully shows that it had a legitimate, nondiscriminatory reason for its actions, the plaintiff “must show that the [employer's] ‘proffered reason is [merely] a pretext for discrimination.’ ” Id.

D. Section 1983

Finally, 42 U.S.C. § 1983 (“Section 1983”) is a vehicle which allows individuals to sue local and state officials if an individual's constitutional rights are violated. Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). Section 1983 does not in itself confer any rights to any person, it just allows a person to sue if their Constitutional rights have been violated. See id. Section 1983 “by itself does not protect anyone against anything.” Id. (internal citation omitted). “[A] claim based on a statutory violation is enforceable under § 1983 only when the statute creates ‘rights, privileges, or immunities’ in the particular plaintiff.” Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 107 n.4, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989).

IV. ANALYSIS

A. The Court finds there is no genuine dispute of material fact as to Plaintiff Surface's Title VII discrimination claims.

a. Plaintiff Chavez has failed to plead a plausible Title VII claim for race-based discrimination.

Title VII prohibits discrimination by a covered employer “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). To make a plausible Title VII racial discrimination claim, Plaintiff Surface must make a prima facie showing of discrimination. He has the burden to show that 1) he belonged to a protected class; 2) he was qualified for his position; 3) he suffered adverse employment action; and 4) other similarly situated employees not in his protected class were treated differently under nearly identical circumstances. Brackens, 252 F.3d at 434. If he succeeds, the burden then shifts to Defendant El Paso, and then back to Plaintiff Surface.

Plaintiff Surface alleges that the Department discriminated against him because he is a “white heterosexual male.” Surface Dep., Mot. Summ. J. 236, ECF No. 23-2. He argues that “as a Caucasian male” he is “protected from racial discrimination in the same manner as individuals of other racial groups, including African Americans.” Resp. 12, ECF No. 26. He further claims that he is “the only White lieutenant that's ever been treated like this.” Surface Dep., Mot. Summ. J. 236, ECF No. 23-1. Defendant El Paso counters Plaintiff Surface's allegations of disparate treatment because Plaintiff Adan Chavez (“Plaintiff Chavez”) received the exact same treatment and punishment as Plaintiff Surface. Mot. Summ. J. 5, ECF No. 23. Plaintiff Chavez is an individual who is a similarly situated as Plaintiff Surface (employee of Department), who is outside Plaintiff Surface's protected class (Plaintiff Chavez is Hispanic and Plaintiff Surface is White), and who engaged in substantially similar conduct as did Plaintiff Surface. Id.

Based on the facts of this case, Plaintiff Surface cannot make a prima facie showing of racial discrimination by Defendant El Paso. Plaintiff Surface can show that he is a member of a protected class, he can show that he was qualified for his position because his position as lieutenant was one he held for many years, and he can show that he suffered an adverse employment action when he was fired from the Department. Plaintiff Surface cannot show that other similarly situated employees not in his protected class were treated differently under nearly identical circumstances. Both Plaintiff Surface and his co-plaintiff Plaintiff Chavez “were the subject of identical discipline.” See Surface Dep., Mot. Summ. J. 237-238, ECF No. 23-2. They were both arrested for engaging in sexual harassment against other officers. Id. at 238. And, they were both placed on administrative leave and ultimately terminated. See id. (when asked whether Plaintiff Chavez was “disciplined in the exact same way” Plaintiff Surface was, Plaintiff Surface answered “Yes” in the affirmative).

Plaintiff Surface also gives examples of other individuals employed by the Department who were “not disciplined, much less terminated” for what he considers similar behavior. He claims that “the complaint that was used against him was disregarded by the Chief of Police when told that Commander Johnson (African American) had sexually harassed [Sergeant Pagitt].” Resp. 13, ECF No. 26. Plaintiff Surface says he “can show that Internal Affairs was informed of another Lieutenant sexually harassing another female subordinate, and no action was taken against Lieutenant Peralty. Who is now in charge of that female employee.” Id. To support his claims at least as to Commander Johnson, Plaintiff Surface submits to the Court text messages between Commander Johnson and Sergeant Pagitt. Messages between Jason D. Johnson and Ashley Pagitt, Resp. 17—20, ECF No. 26-1. Defendant El Paso characterizes this exchange Plaintiff Surface cites to as “flirtatious in nature,” and notes “Johnson and Pagitt do not exchange any photographs or make sexually explicit comments to one another.” Reply 4, ECF No. 28. The Court agrees that these messages are solely “flirtatious in nature” and do not rise to the level of the interactions between Plaintiff Surface and Sergeant Pagitt. There is not enough of a similarity for a reasonable factfinder to come to the determination that Plaintiff Surface and Commander Johnson are similarly situated employees who were subject to disparate treatment based on their race. Based on the facts of the case and exhibits submitted to this Court, the Court believes that Plaintiff Surface has not met his burden to show that Defendant El Paso discriminated against him because of his race.

Plaintiff Surface cannot establish racial discrimination in violation of Title VII and therefore cannot bring said claim. As such, the Court will not shift the burden to Defendant El Paso. Accordingly, the Court finds that there is no genuine dispute of material fact as to Plaintiff Chavez's Title VII racial discrimination claim.

b. Plaintiff Surface has failed to plead a plausible Title VII claim for sex-based discrimination.

Similarly to race, Title VII prohibits discrimination from a covered employer on the basis of an employee's sex. To show sex-based discrimination under Title VII, Plaintiff Surface must make a prima facie showing that 1) he is a member of a protected class; 2) he was qualified for his job; 3) despite his qualifications, a decision was made that adversely affected his employment; and 4) either his position was filled by someone of the opposite sex, or members of the opposite sex received more favorable treatment because of their gender. Thornton, 850 F.Supp. at 542 (N.D. Tex. 1994). If Plaintiff Surface can make this prima facie showing, the burden shifts to Defendant El Paso, and then back to Plaintiff Surface. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. A failure to identify a potential comparator “alone justifies dismissal of” Plaintiff Surface's Title VII claim. Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 427 (5th Cir. 2017).

Plaintiff Surface establishes the first three prongs, but cannot meet the fourth and final prong of the prima facie test for sex-based discrimination. To succeed, Plaintiff Surface needs to show at least one woman in the department who was accused of the same or similar behavior as him, and needs to show that she was treated more favorably than he was. Plaintiff Surface identifies five women who he claims were treated more favorably than he was.

He gives the example of Sgt. Magali Franco, who allegedly had sex with her subordinate and received no disciplinary action against her. Ex. O, Mot. Summ. J. 196—197, ECF No. 23-2. Another example is Sergeant Ashley Pagitt who he alleges was “involved in a hostile work environment investigation after” Plaintiff Surface's arrest whereby “no action was ever taken against her.” Id. at 197. He cites to Sergeant Jessica Grijalva who was arrested for a DWI offense “which had a lot of media exposure” and where there “was never a press conference for the offense, and she was not terminated for the arrest.” Id. He cites to Officer Sarah Stokes, who, Plaintiff Surface claims, was “in a sexual relationship with her supervisor, Lt. Ricardo Medina, and was never investigated criminally for this offense. There was no press release or conference due to this relationship” and “she was not terminated for this relationship.” Id. Finally, Plaintiff Surface points to Sergeant Roslynn Carrasco who “was involved in a sexual relationship with her supervisor, Commander Thomas Pena” and “there was no investigation into this conduct against her or against Commander Pena.” Id.

Despite these examples, Plaintiff Surface's claim would still fail because these women are not “similarly situated” for purposes of Plaintiff Surface's sex-discrimination claim. None, as far as the Court is aware, were charged with official oppression, whereas Plaintiff Surface was. Defendant El Paso argues that “Plaintiff Surface does not allege that any of these female, employees engaged in conduct substantially similar to his own.” Mot. Summ. J. 7, ECF No. 23. None of the female employees “identified held the same rank or supervisory duties as Plaintiff Surface.” Id. Without more, and without such analogous details, Plaintiff Surface “cannot rely on these employees as comparators in support of his sex discrimination claim.” Id.

Plaintiff Surface cannot establish sex discrimination in violation of Title VII and therefore cannot bring said claim. As such, the Court will not shift the burden to Defendant El Paso. Accordingly, the Court finds that there is no genuine dispute of material fact as to Plaintiff Surface's Title VII sex discrimination claim.

B. The Court finds there is no genuine dispute of material fact as to Plaintiff Surface's Title VII retaliation claim.

Section 704(a) of Title VII expressly prohibits retaliatory conduct. McDaniel, 770 F.2d at 1346. To prove a violation of Section 704(a), Plaintiff Surface would have to establish a prima facie case of retaliation by showing 1) he engaged in activity protected by Title VII; 2) that an adverse employment action occurred; and 3) that there was a causal connection between the participation in the protected activity and the adverse employment decision. Id. If Plaintiff Surface successfully establishes a prima facie case, the burden then shifts to Defendant El Paso to provide a “legitimate, nonretaliatory reason for the adverse employment action.” Hockman v. Westward Commc'n, LLC, 407 F.3d 317, 330 (5th Cir. 2004). If Defendant El Paso can assert a legitimate, nonretaliatory reason for the adverse employment action, the burden shifts back to Plaintiff Surface. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817.

An individual engages in “protected activity” when he has either 1) opposed any. practice made an unlawful employment practice by Title VII; or 2) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII. See Dick v. J.B. Hunt Transp. Inc., 772 F.Supp.2d 806, 821 (N.D. Tex. 2011).

Plaintiff Surface alleges that he engaged in “protected activity” when he was retaliated against. Specifically, Plaintiff Surface states that he “made a comment to [his] commander at the time, [he] said, these – this training, it seems like it's being done to solicit complaints instead of address any issues.” Surface Dep., Mot. Summ. J. 233, ECF No. 23-2. Plaintiff Surface's commander allegedly became “really upset” that Plaintiff Surface said that to him, and five days later, Plaintiff Surface was accused of sexual harassment. Id. at 233—234. This comment, Plaintiff Surface believes, is the reason that he was retaliated against. Id. at 234—235. Defendant El Paso disagrees with Plaintiff Surface's characterization of his “protected activity” and argues that he did not engage in any protected activity as the basis of the purported retaliation. Mot. Summ. J. 9, ECF No. 23.

The comment made to Plaintiff Surface's commander, by itself, is not enough to show that Plaintiff Surface opposed an unlawful employment practice. To oppose an unlawful employment practice, an individual would need “a reasonable belief that the employer was engaged in unlawful employment practices.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007). There is nothing to indicate to this Court that 1) the sexual harassment trainings were an unlawful employment practice or that 2) Plaintiff Surface had a reasonable belief that the sexual harassment trainings were anything more than an annoyance. Further, “an internal complaint that does not allege discrimination or any other unlawful activity under Title VII is not considered protected activity.” Lopez v. AT & T Mobility Servs. LLC, 767 F.Supp.3d 406, 432 (W.D. Tex. 2025).

Plaintiff Surface's comment to his commander does not qualify as engaging in “protected activity” under the definition. He also cannot establish a causal connection between that comment and the purported retaliation. A “causal link” is established when the evidence demonstrates that the employer's decision to terminate was in part on knowledge of the employee's protected activity. See Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001). The comment Plaintiff Surface made to his commander appeared to be nothing more than a complaint about the need to continue having sexual harassment training. Nothing that Plaintiff Surface said to his commander, based on Plaintiff Surface's own testimony, appeared to reference an unlawful employment practice or discrimination. No reasonable person in the commander's position could believe that the comment made by Plaintiff Surface indicated that the sexual harassment training was discriminatory in nature. Without more, the Court cannot determine that the comment Plaintiff Surface made to his commander resulted in retaliation against Plaintiff Surface.

Plaintiff Surface cannot establish a prima facie case of retaliation in violation of Title VII and therefore cannot bring said claim. As such, the Court will not shift the burden to Defendant El Paso. Accordingly, the Court finds that there is no genuine dispute of material fact as to Plaintiff Surface's Title VII retaliation claim.

C. The Court finds there is no genuine dispute of material fact as to Plaintiff Surface's Section 1981 race discrimination claim.

In addition to his Title VII claim of racial discrimination, Plaintiff Surface alleges the Department and Defendant El Paso discriminated against him on the basis of his race in violation of Section 1981. To make out a prima facie case of a violation of Section 1981, Plaintiff Surface must show intent to discriminate. More specifically he must show that 1) he is a member of a racial minority; 2) the employer or defendant had intent to discriminate on the basis of race; and 3) the discrimination concerned one or more of the activities enumerated in Section 1981 or 1982. See Hager, 102 F.4th at 700 (internal citations omitted).

While it's unlikely that Plaintiff Surface can show that he is a member of a racial minority, it is also unlikely that he can present sufficient evidence to show the requisite intent on the part of the Department and Defendant El Paso to allow this Court to conclude that Defendant El Paso's actions were racially motivated. See Cho v. Itco, Inc., 782 F.Supp. 1186, 1187 (E.D. Tex. 1992).

In his deposition, Plaintiff Surface alleged he was disciplined “more harshly” because he is a White male. Surface Dep., Mot. Summ. J. 237, ECF No. 23-2. But, as Defendant El Paso points out, the Department and Defendant El Paso treated co-Plaintiff Chavez exactly the same as it did Plaintiff Surface, despite Plaintiff Chavez being Hispanic while Plaintiff Surface is White. Id. at 237—38; Mot. Summ. J. 13, ECF No. 23. The fact that Plaintiff Surface was treated in exactly the same manner as Plaintiff Chavez is a direct contradiction of Plaintiff Surface's claims that he was disciplined “more harshly” because he is a White male. Plaintiff Surface cannot show that Defendant El Paso intended to discriminate against him on the basis of his race.

Plaintiff Surface cannot establish a prima facie case of racial discrimination in violation of Section 1981 and therefore cannot bring said claim. As such, the Court will not shift the burden to Defendant El Paso. Accordingly, the Court finds that there is no genuine dispute of material fact as to Plaintiff Surface's Section 1981 racial discrimination claim.

D. The Court finds there is no genuine dispute of material fact as to Plaintiff Surface's Section 1983 claims.

a. Plaintiff Surface cannot establish a First Amendment violation.

As mentioned previously, Section 1983 does not confer rights upon anyone for anything, and it is not a cause of action in itself. Rather, it is a vehicle that allows individuals to bring suit against the government when government actors deprive them of their constitutional rights. See Gonzaga Univ., 536 U.S. at 285, 122 S.Ct. 2268. For Plaintiff Surface to state a claim under Section 1983, he must 1) allege the violation of a right secured by the Constitution and the laws of the United States, and 2) must show that the alleged deprivation was committed by a person acting under the color of state law, in other words, a federal official. See West v. Atkins, 487 U.S. 42, 48—49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).

Plaintiff Surface alleges that his rights under the First Amendment of the United States Constitution (“First Amendment”) were violated. He alleges that he was arrested and at Chief Pacillas’ direction after Plaintiff Surface “exercised his First Amendment right to speech.” Compl. 2, ECF No. 1. Specifically, the speech he is referencing is when he spoke to his Commander about the constant number of sexual harassment trainings and how he believed they were designed to solicit complaints instead of address any issues. Surface Dep., Mot. Summ. J. 233, ECF No. 23-2. The Court notes and Defendant El Paso points out Plaintiff Surface's “baseless[ ] claim that the investigation into sexual harassment of a subordinate officer was “command-driven” by Chief Pacillas.” Reply 6, ECF No. 29. Plaintiff Surface provides the Court no evidence to show that Chief Pacillas ordered the investigation into Plaintiff Surface, and therefore cannot take this allegation as true.

The First Amendment prohibits making any law which abridge “the freedom of speech” or abridge “the right of the people peaceably to assemble.” U.S. Const. amend I. Public employees do not lose all free speech rights, but because Plaintiff Surface was a public employee at the time, in order to succeed on his First Amendment violation claim, he needs to show that 1) he suffered an adverse employment action; 2) he spoke as a citizen, not as a public employee, on a matter of public concern; 3) his interest in the speech outweighed the employer's interest in promoting efficiency; and 4) the speech motivated the adverse employment action. Hamilton v. City of Wilmer, Tex., 140 F.4th 650 (5th Cir. 2025).

Because Plaintiff Surface can show he suffered an adverse employment action when he was terminated, the Court is not going to examine that factor. Defendant El Paso argues that at the time Plaintiff Surface made the comment to his commander about the sexual harassment trainings he was “not speaking as a citizen—but rather in his role as an employee” because he made statements pursuant to his official duties as a lieutenant. Mot. Summ. J. 15, ECF No. 23 (citing Haverda v. Hays County, 723 F.3d 586, 597—98 (5th Cir. 2013)) (internal citation omitted). To support their position, Defendant El Paso points to the fact that Plaintiff Surface was “on duty, in uniform, and engaged in discussion with his superior when the comment was made.” Mot. Summ. J. 15, ECF No. 23.

Plaintiff Surface would also have to show that his speech to his commander was a “substantial” or “motivating” factor for the adverse employment action taken when he was terminated. See Click v. Copeland, 970 F.2d 106, 113 (5th Cir. 1992). It is unlikely Plaintiff Surface can make this showing because the adverse employment action taken against Plaintiff Surface was directly related to the multiple sexual harassment complaints against Plaintiff Surface made by Officer Ibarbo and Sergeant Pagitt, not the comment Plaintiff Surface made to his commander. The Court agrees with Defendant El Paso: Defendant El Paso's “decision to terminate Plaintiff Surface was based on the clear violation of [Department] policies he engaged in” not due to the comment he made to his commander. Mot. Summ. J. 17, ECF No. 23.

Plaintiff Surface cannot establish a prima facie case of a violation of the First Amendment under Section 1983 and therefore cannot bring said claim. As such, the Court will not shift the burden to Defendant El Paso. Accordingly, the Court finds that there is no genuine dispute of material fact as to Plaintiff Surface's First Amendment claim.

b. Plaintiff Surface cannot show a violation of his civil rights due to a retaliatory arrest.

Plaintiff Surface alleges that his civil rights were violated when the victim of a retaliatory arrest for the charge of Official Oppression. He states that there were “material omissions” in the warrant application which ultimately led to his arrest. Resp. 19, ECF No. 26. In order to succeed on a retaliatory arrest claim under Section 1983, Plaintiff Surface needs to show that “the official acted with retaliatory motive” and that Plaintiff Surface was injured, but also that the motive was a “but-for” cause of the injury. Hartman v. Moore, 547 U.S. 250, 259—260, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006).

Specifically, Plaintiff Surface argues that “the warrant application omitted a contradictory statement” made by another employee of the Department. Resp. 19, ECF No. 26. Alternatively, instead of alleging material omissions, Plaintiff Surface opines that the warrant application may have lacked probable cause because the detective investigating the charge “admitted to having no prior experience handling cases” of that nature. Resp. 19—20, ECF No. 26. And adds that “[w]hile inexperience alone does not negate probable cause, it may contribute to an argument that the investigation was insufficient or improperly conducted.” Id. According to Plaintiff Surface, the inexperience of the investigating detective “further supports plaintiffs (sic) claim that the arrest lacked a reasonable basis.” Id. at 20.

“Probable cause exists when the totality of the facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.” Lincoln v. Turner, 874 F.3d 833, 842 (5th Cir. 2017).

Defendant El Paso argues that at the time Plaintiff Surface was charged with Official Oppression under the Texas Penal Code, Defendant El Paso “had uncovered sufficient information to establish probable cause to proceed with requesting and securing” a warrant. Mot. Summ. J. 19, ECF No. 23. Defendant El Paso did not base the complaint affidavit on which it secured a criminal warrant on a simple hunch. Both Officer Ibarbo and Sergeant Pagitt had provided testimony and text messages to the Department. Id. This evidence was sufficient enough for the Department and Defendant El Paso “to determine from the totality of the circumstances that Plaintiff Surface had committed the offense of Official Oppression.” Id. Based on the evidence provided to this Court, the Court believes that there was probable cause to arrest Plaintiff Surface with the crime of Official Oppression.

Plaintiff Surface cannot establish a prima facie case of retaliatory arrest under Section 1983 and therefore cannot bring said claim. As such, the Court will not shift the burden to Defendant El Paso. Accordingly, the Court finds that there is no genuine dispute of material fact as to Plaintiff Surface's retaliatory arrest claim.

E. The Court finds that Defendant El Paso had a legitimate, nondiscriminatory reason for its investigation into, and ultimate termination of Plaintiff Surface.

Plaintiff Surface has made multiple claims against Defendant El Paso, and to each of those claims Defendant El Paso has a legitimate, nondiscriminatory reason for its employment actions against Plaintiff Chavez. Because Plaintiff Surface failed to make a prima facie case for all claims alleged in his Complaint, the Court will now take the time to enumerate Defendant El Paso's legitimate, nondiscriminatory reasons for its investigation into and ultimate termination of Plaintiff Surface.

The investigation into Plaintiff Surface was not done on a whim, it was done due to an internal complaint that Defendant El Paso and the Department received and had to investigate to determine its legitimacy. Mot. Summ. J. 7—8, ECF No. 23. The investigation into Plaintiff Surface was “not motivated by racial animus, but were the standard process for IAD to review claims of sexual harassment made by” Department employees. Id. at 13. As part of the investigation, the Department took statements from the parties involved and followed departmental policies and procedures. Id. at 8. When conducting its investigation, the Department realized that Plaintiff Surface's actions could rise to the level of a criminal action, and therefore had to act accordingly. Id. Plaintiff Surface was made aware of the allegations against him, as well as the reasons for his termination. Id.

Defendant El Paso, and the Department, took the steps necessary to identify and investigate the claims made against Plaintiff Surface, which, unfortunately for Plaintiff Surface resulted in his termination. An undesirable outcome for Plaintiff Surface does not mean that the Department or Defendant El Paso engaged in any unlawful behavior or discriminated against. Plaintiff Surface and violated his rights.

V. CONCLUSION

Defendant El Paso moves this Court to dispose of this lawsuit by granting its “Motion for Summary Judgment on Plaintiff John Surface Claims and Brief in Support,” ECF No. 23, because it argues Plaintiff Adan Chavez has alleged no genuine issues of material fact for either this Court or a jury to decide at trial. This Court agrees with Defendant El Paso and finds that Plaintiff Chavez has failed to allege genuine issues of material fact for either this Court or a jury to decide at trial. Accordingly, the Court is of the opinion that the following order shall issue:

IT IS HEREBY ORDERED that Defendant City of El Paso's “Motion for Summary Judgment on Plaintiff John Surface's Claims and Brief in Support,” ECF No. 23, is GRANTED.

IT IS FURTHER ORDERED that because Defendant Pete Pacillas is sued in his official capacity, this Court applies all judgments rendered herein to both Defendant City of El Paso as well as to Defendant Pete Pacillas ² .

IT IS FINALLY ORDERED that all claims against Defendant City of El Paso as well as Defendant Pete Pacillas are DISMISSED.

FOOTNOTES

1.   “ECF No” refers to the Electronic Case Filing (“ECF”) number for documents docketed in this matter. When a discrepancy exists between page numbers on filed documents and page numbers assigned by the ECF system, the Court will use the page numbers assigned by the ECF system.

2.   A suit against a governmental officer “in his official capacity” is the same as a suit against the entity of which the officer is an agent. And if these claims against the officer in his official capacity seek identical relief as claims against the governmental entity, the official capacity claims may be dismissed as duplicative. Baker v. Llano Cnty., 746 F.Supp.3d 429, 439 (W.D. Tex. 2024) (internal citations omitted); see also Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001).

DAVID BRIONES, SENIOR UNITED STATES DISTRICT JUDGE