SURFACE v. PACILLAS (2025)

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT CITY OF EL PASO'S MOTIONS FOR SUMMARY JUDGMENT ON PLAINTIFF ADAN CHAVEZ (ECF No. 22)

I. INTRODUCTION

On this day, the Court considered Defendant City of El Paso's (“Defendant El Paso”) “Motion for Summary Judgment on Plaintiff Adan Chavez's Claims and Brief in Support” (“Motion for Summary Judgment”), filed on March 4, 2025, ECF No ¹ . 22. Therein, Defendant El Paso moves this Court to grant “summary judgment on Plaintiff Chavez'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 Adan Chavez (“Plaintiff Chavez”) responded to the instant motion on April 15, 2025. See Resp., ECF No. 27. Finally, Defendant El Paso replied to Plaintiff Chavez's response on April 22, 2025. See Reply, ECF No. 29. Defendant El Paso argued that Plaintiff Chavez “fail[ed] to establish a genuine issue of material fact as to any of his claims.” Id. at 2. Having considered the arguments and exhibits provided by both parties, this Court finds that Plaintiff Chavez has failed to establish a genuine issue of material fact as to any of his claims and therefore grants Defendant El Paso's “Motion for Summary Judgment on Plaintiff Adan Chavez's Claims and Brief in Support,” ECF No. 22 in its entirety. The Court will now address the underlying arguments in turn.

II. FACTUAL BACKGROUND

Plaintiff Chavez was originally hired by the El Paso Police Department (“Department”) in 2001 and began his career as a police trainee with the Department. Mot. Summ. J. 1, ECF No. 22. After his training period, Plaintiff Chavez worked as a high school undercover narcotics officer for a period of time, as well as the officer in charge of the Department's Crime Suppression Unit. Compl. 2, ECF No. 1. From there, and after multiple promotions, he worked his way up to the role of police sergeant at the Pebble Hills Regional Command Center in 2013. Id. And then finally as a sergeant with the Department's Crime Scene Unit (“CSU”), where he worked at the time of his termination. Mot. Summ. J. 2, 4, ECF No. 22.

While in his role as police sergeant with the Department's CSU, a younger female officer Rose Ibarbo (“Officer Ibarbo”), who was also working for the Department's CSU, filed a complaint with Internal Affairs Department (“IAD”) on June 12, 2023, about Plaintiff Chavez, who was her supervisor, as well as the co-plaintiff Plaintiff John Surface (“Plaintiff Surface”). Id. at 2. In the complaint made to IAD, Officer Ibarbo alleged that Plaintiff Chavez sent her messages indicating Plaintiff Surface was interested in her sexually, and that if she refused his advances, her career would suffer. Id.

According to Plaintiff Chavez, on June 17, 2023, after the IAD investigation had been initiated, Plaintiff Chavez met with Lieutenant Robert Zavala with the IAD. Compl. 7, ECF No. 1. A few weeks later on July 26, 2023, another employee with the Department, Sergeant Ashley Pagitt (“Sergeant Pagitt”), “made a statement against Plaintiff Surface and Chavez.” Mot. Summ. J. 2, ECF No. 22. Sergeant Pagitt's complaint stated that Plaintiff Surface engaged in “unwelcome sexual behavior” with her, and indicated that Plaintiff Chavez knew about this behavior, but did not participate himself. Id. Following the complaints of both Officer Ibarbo and Sergeant Pagitt, the Department launched a formal criminal investigation into Plaintiffs Chavez and Surface on July 28, 2023. Id. at 2—3.

As a result of the criminal investigation into Plaintiff Chavez, Plaintiff Chavez was charged with misdemeanor “Official Oppression” under the Texas Penal Code § 39.03. Id. at 3. 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).

Plaintiff Chavez was arrested on August 30, 2023, after a warrant had been issued the day before. Mot. Summ. J. 3, ECF No. 22. The same day, Plaintiff Chavez was placed on administrative leave with the Department, while the criminal case played out. Id. Finally, on February 1, 2024, the El Paso County District Attorney's Office (“DA's Office”) declined to prosecute the Official Oppression charge against Plaintiff Chavez. Id. Regarding his arrest, Plaintiff Chavez claims that “[a]t no other time has anyone been charged criminal (sic) for a similar offense by the department.” Compl. 4, ECF No. 1.

While the criminal case against Plaintiff Chavez was declined, Plaintiff Chavez was still facing an investigation into his alleged misconduct by IAD. Mot. For Summ. J. 4, ECF No. 22. During the IAD investigation process, Plaintiff Chavez did admit to certain misconduct involving Sergeant Pagitt, but ultimately denied he knew anything about the alleged misconduct involving Plaintiff Surface and Officer Ibarbo. Id. The IAD investigation was brought before the Department's Discipline Review Board (“DRB”) on May 21, 2024. Id. In the end, the DRB sustained the allegations made against Plaintiff Chavez, which ultimately resulted in his termination from the Department. Id. The Department issued Plaintiff Chavez a Notice of Termination of Employment on June 18, 2024, and his last day of employment with the Department was on July 3, 2024. Id. at 4—5.

At the heart of this case is the alleged misconduct by, arrest of, and ultimate termination of Plaintiff Chavez when he was employed by the El Paso Police 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, this 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 (citation omitted). 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 Chavez'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). This 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 Servs., 605 U.S. 303, 308, 145 S.Ct. 1540, 221 L.Ed.2d 929 (2025). Simply alleging Title VII discrimination is not enough. In order 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 VIPs disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs.” Ames, 605 U.S. at 309, 145 S.Ct. 1540. 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. Age discrimination under ADEA

Unlike discrimination based on race and sex, there is no such Title VII protection of age. Instead, the “Age Discrimination in Employment Act of 1967” (“ADEA”), codified as 29 U.S.C. § 623 makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual ․ because of such individual's age.” See 29 U.S.C. § 623(a)(1). The McDonnell Douglas framework is applied to claims of age discrimination under the ADEA. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). In order to establish a prima facie case of age discrimination, an individual must show 1) at the time he was fired, he was a member of a class protected by ADEA (“individuals who are at least 40 years of age,” 29 U.S.C. § 631(a)); 2) that he was otherwise qualified for the position; 3) that he was terminated by his employer; and 4) that the employer hired people younger than him to fill his position. See id.

The burden then shifts to the employer to show that the individual “was rejected, or someone else was preferred for a legitimate, nondiscriminatory reason.” Id. (internal citations omitted). The burden held by the employer is a burden of production, not of persuasion, so a credibility determination cannot be made. See id. Finally, if the employer produces sufficient evidence that there was a legitimate, nondiscriminatory reason for the complainant's termination, the burden shifts back to the complainant to show “by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Id.

D. 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.

E. 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 Chavez's Title VII discrimination claims.

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

Plaintiff Chavez claims he was discriminated on the basis of his race in violation of Title VII. Ex. O, Mot. Summ. J. 171, ECF No. 22-1. He stated in his interrogatory response that he “is the [only] hispanic (sic) male to be arrested, have his case declined, and be fired solely because of that arrest.” Id. He stated that this termination was “not a result of any disciplinary violation under the terms of the collective bargaining agreement governing discipline” but was instead “an administrative decision, which demonstrates that [Plaintiff Chavez] was subjected to discriminatory treatment by the department.” Id. Defendant El Paso counters Plaintiff Chavez's allegations of a race-based Title VII violation by stating that he is unable to prove that he was treated differently than a non-Hispanic employee under similar circumstances. Mot. Summ. J. 7, ECF No. 22; Reply 4, ECF No. 29.

To succeed in proving race-based discrimination in violation of Title VII, Plaintiff Chavez must first make a prima facie showing of race-based discrimination pursuant to the McDonnell Douglas framework. Ames, 605 U.S. at 308, 145 S.Ct. 1540 (internal citation omitted). Only after Plaintiff Chavez makes this initial showing would the burden shift to Defendant El Paso “to articulate some legitimate, nondiscriminatory reason for the employee's rejection.” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. For Plaintiff Chavez to establish a prima facie case of race discrimination under Title VII, he must show that 1) he 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, 252 F.3d at 434.

Plaintiff Chavez can easily meet the first three prongs to establish a prima facie case of racial discrimination. He can show that he is a member of a protected group because he is Hispanic. He can show that he was qualified for the position held because he had been a sergeant since at least 2013. And finally, he can show that he was discharged from the position he held as sergeant with the Department. But Plaintiff Chavez cannot satisfy the fourth prong because he suffered the same exact fate as Plaintiff Surface, despite Plaintiff Surface not belonging to a protected racial group like Plaintiff Chavez.

In this case, Plaintiff Surface is a White/Anglo male who is situated outside of Plaintiff Chavez's protected racial class. Mot. Summ. J. 7, ECF No. 22; see also Chavez Dep., Mot. Summ. J. 198—99, ECF No. 22-1. Complaints were made about both Plaintiff Chavez and Plaintiff Surface, and as a result both Plaintiffs Chavez and Surface underwent administrative investigations by the IAD. Id. Both Plaintiffs Chavez and Surface were arrested, placed on administrative leave, and ultimately terminated from their positions. Id. Despite Plaintiff Chavez's assertion that “[a]t no other time has anyone been charged criminal (sic) for a similar offense by the department,” see Compl. 4, ECF No. 1, that assertion is simply not enough given the clear evidence to the contrary. Plaintiff Surface was the only other individual charged with the same crime as Plaintiff Chavez, and who received the exact same treatment as Plaintiff Chavez, despite them not being from the same racial background. See Chavez Dep., Mot. Summ. J. 198—99, ECF No. 22-1 (when asked during his deposition about whether he and Plaintiff Surface were treated “the exact same way,” Plaintiff Chavez responded “Yes.”). It is therefore “an undisputed fact that Plaintiff Chavez and Plaintiff Surface were similarly situated employees outside each other's racial group who were subject to identical discipline for substantially similar conduct.” Reply 5, ECF No. 29.

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

Plaintiff Chavez argues that he was discriminated against on the basis of his sex in violation of Title VII. To establish a prima facie case of sex discrimination under Title VII, he would have to 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, 850 F.Supp. at 542. If Plaintiff Chavez successfully makes his prima facie case, the burden would shift to Defendant El Paso. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817.

Plaintiff Chavez meets the first three prongs, but cannot meet the fourth and final prong of the prima facie test for sex-based discrimination. To succeed, Plaintiff Chavez 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 Chavez identifies five women who he claims wei*e 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. 170, ECF No. 22-1. Another was Sgt. Susana Davila who allegedly faced sexual harassment complaints after showing herself in a bikini to subordinates. Id. Then Sgt. Jacqueline Aguilera who was an IAD officer and who was providing secret information about an ongoing investigation to the subject of the investigation with whom she was having a sexual relationship. Id. Officer Sarah Stokes was allegedly having a sexual relationship with her supervisor and nothing came of this. Id. And finally, Sgt. Dianne Roberts who also had a sexual relationship with a subordinate and was accused of sexual harassment but was ultimately not fired. Id.

Despite these examples, Plaintiff Chavez's claim would still fail because these women are not “similarly situated” for purposes of Plaintiff Chavez's sex-discrimination claim. None, as far as the Court is aware, were charged with official oppression, whereas Plaintiff Chavez was. Further, just because these women were alleged to have violated the Department's policies at one time, that does not mean the women are similarly situated and “no basis exists for an inference that the employer's treatment of the two employees was disparate under Title VII.” Mot. Summ. J. 8, ECF No. 22 (citing to Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177, 1180 (5th Cir. 1990).

Plaintiff Chavez 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 Chavez's Title VII sex discrimination claim.

B. The Court finds that there is no genuine dispute of material fact as to Plaintiff Chavez's age discrimination claim under ADEA.

Title VII does not create a cause of action for age-based discrimination, however the ADEA does. The ADEA makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual ․ because of such individual's age.” See 29 U.S.C. § 623(a)(1). The McDonnell Douglas framework is applied to cases of age discrimination under the ADEA. Reeves, 530 U.S. at 142, 120 S.Ct. 2097. In order to establish a prima facie case of age discrimination, an individual must show 1) at the time he was fired, he was a member of a class protected by ADEA (“individuals who are at least 40 years of age,” 29 U.S.C. § 631(a)); 2) that he was otherwise qualified for the position; 3) that he was terminated by his employer; and 4) that the employer hired people younger than him to fill his position. See id.

Plaintiff Chavez claims that at the time of his termination he was “replaced by a younger, female sergeant. Sergeant Claudia Alcantar who was a novice Supervisor with only a year of supervisory police experience.” Ex. O, Mot. Summ. J. 168, ECF No. 22-1. In addition to Sergeant Alcantar, another individual, Sergeant Peter Fonte, who was also younger than Plaintiff Chavez was transferred into the Department's CSU. Id. Plaintiff Chavez claims that Sergeant Fonte had “only a couple years of supervisory experience.” Id.

Based on the facts, it is likely that Plaintiff Chavez can make a prima facie case of age discrimination in violation of the ADEA because 1) at the time he was fired he was over 40 years old, 2) he was otherwise qualified for the position, 3) he was terminated by Defendant El Paso, and 4) the Department hired people younger than him to fill his position. The Court must now look to Defendant El Paso's reasoning to see if it there existed “some legitimate, nondiscriminatory reason” for Plaintiff Chavez's termination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817.

Defendant El Paso states that Plaintiff Chavez cannot point to any supporting evidence to show that Sergeants Alcantar and Fonte are unqualified for their positions. Mot. Summ. J. 10, ECF No. 22. So just the fact that Sergeants Alcantar and Fonte are younger than Plaintiff Chavez is not enough to show the Department intended to discriminate against him, or that the Department hired these two individuals simply because they were younger than Plaintiff Chavez. Plaintiff Chavez has the burden to show that he was discriminated against because of his age and the evidence simply does not bear it out. Therefore, while Plaintiff Chavez clears the first low threshold to show age-based discrimination, Defendant El Paso has a legitimate, non-discriminatory reason to promote these two sergeants, and therefore Plaintiff Chavez's claim ultimately fails.

Because Plaintiff Chavez cannot establish age discrimination in violation of the ADEA, he 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 ADEA age discrimination claim.

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

For Plaintiff Chavez to prove a violation of Section 704(a) of Title VII, which expressly prohibits retaliation, he 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. McDaniel, 770 F.2d at 1347 (internal citations omitted). For Title VII purposes, a protected activity is one in which a plaintiff 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.” Dick v. J.B. Hunt Transp., Inc., 772 F.Supp.2d 806, 821 (N.D. Tex. 2011) (cleaned up).

If Plaintiff Chavez successfully establishes a prima facie case of retaliation in violation of Title VII, the burden then shifts to Defendant El Paso to show that there was a “legitimate, nonretaliatory reason for the adverse employment action.” Hockman v. Westward Commc'n LLC, 407 F.3d 317, 330 (5th Cir. 2004).

In trying to meet his burden, Plaintiff Chavez argues he engaged in protected activity pursuant to Title VII. Ex. O, Mot. Summ. J. 170—71, ECF No. 22-1. And that Defendant El Paso “cannot fire [someone] who did not cooperate with the investigation and call it proof of non-discrimination. That is the definition of retaliation.” Resp. 14, ECF No. 27. Whereas Defendant El Paso argues that Plaintiff Chavez did not engage in protected activity prior to his termination. Mot. Summ. J. 12, ECF No. 22. When asked about what specific protected activity he engaged in, Plaintiff Chavez states that Chief Pacillas publicized Plaintiff Chavez's arrest and ultimately fired him months later. Ex. O, Mot. Summ. J. 170—71, ECF No. 22-1. He states that “this was the first, and only time such an action had been taken, and it was done for the sole purpose to serve the personal interests of [ ] Pacillas and the public relations objections of Defendant [ ] El Paso.” Id. This does not qualify as “protected activity” under Title VII.

Further, in his deposition, Plaintiff Chavez alternatively claims that he was retaliated against because he was “advised to cut off ties with” Plaintiff Surface. Chavez Dep., Mot. Summ. J. 194, ECF No. 22-1. And that Plaintiff Chavez believed the Department “wanted [him] to get away from [Plaintiff] Surface” because they had “some problem with [Plaintiff] Surface.” Id. at 195. This is similarly not protected activity under Title VII. Plaintiff Chavez appears to believe that because he did not “cut off ties” with Plaintiff Surface, he was arrested and then terminated.

Plaintiff Chavez's reasoning completely misses the mark. He does not allege that he participated in any protected activity under Title VII. He did not oppose any practice made unlawful by Title VII, he did not ever make a charge, testify, assist, or otherwise participate in any manner in an investigation, proceeding, or hearing under Title VII. He simply states that he was told to stay away from Plaintiff Surface, and also that Chief Pacillas targeted him and Plaintiff Surface by publicizing their arrests and ultimately firing them.

Plaintiff Chavez cannot establish 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 Chavez's Title VII retaliation claim.

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

Section 1981 prohibits racial discrimination for both private and public actors. To make out a prima facie case of a violation of Section 1981, Plaintiff Chavez must show intent to discriminate, more specifically he must show that 1) he is a member of a racial minority; 2) Defendant El Paso 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).

To prove intent, Plaintiff Chavez “must present sufficient evidence for a reasonable fact finder to conclude that” Defendant El Paso's actions were “racially motivated.” Cho v. Itco, Inc., 782 F.Supp.1186, 1187 (E.D. Tex. 1992). Because direct evidence of racial discrimination is rare, to show intent, Plaintiff Chavez must show that 1) he is a member of a protected group; 2) he was qualified for the position at issue; 3) he was discharged or suffered some adverse employment action by the employer; and 4) he was replaced by someone outside of his protected group or was treated less favorably than other similarly situated employees outside of his protected group. Clark, 116 F.4th at 486.

Quite simply, Plaintiff Chavez cannot meet this burden. He is a member of a protected group because he is Hispanic, he was qualified for the position at issue because he had been a sergeant with the Department for over a decade, and he was discharged from the Department. However, he was not treated less favorably than other similarly situated employees outside of his protected group, namely Plaintiff Surface. Defendant El Paso argues, and the Court agrees, that “Plaintiff Chavez makes no allegation that he was treated less favorably than non-Hispanic employees.” Mot. Summ. J. 14, ECF No. 22. Defendant El Paso treated Plaintiff John Surface “a White/Anglo man outside Plaintiff Chavez's racial group - identically to Plaintiff Chavez for substantially similar conduct: both Plaintiffs underwent administrative investigations, [both] were charged with official oppression, [both were] brought before the [DRB], and [both were] terminated for violation” of the Department's policies and procedures. Id. Plaintiff Chavez “fails to address the elements” of this claim “or identify any specific acts that would raise a genuine issue of material fact regarding those elements.” Reply 6, ECF No. 29.

Plaintiff Chavez cannot establish 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 Chavez's Section 1981 claim.

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

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.

a. First Amendment

The first issue the Court will address is an alleged associational discrimination violation under the First Amendment of the United States Constitution (“First Amendment”). The First Amendment prohibits Congress, among other things, from making any law which abridge “the freedom of speech” or abridge “the right of the people peaceably to assemble.” U.S. Const. amend. I. To make a prima facie case for associational discrimination, as Plaintiff Chavez tries to do, he must show that this claim is based directly on his own race. Rivera v. Townsquare Media Broad., LLC, 309 F.Supp.3d 441, 448 (W.D. Tex. 2018).

Plaintiff Chavez argues that because an individual in the Department told him not to associate with Plaintiff Surface, that was a violation of his First Amendment rights. Mot. Summ. J. 16, ECF No. 22; see also Chavez Dep., Mot. Summ. J. 194, ECF No. 22-1; Ex. O, Mot. Summ. J. 170—71, ECF No. 22-1. Plaintiff Chavez seems to believe that Plaintiff Surface was discriminated against for being White/Anglo, and his association with Plaintiff Surface made him a target of associational discrimination. See Chavez Dep., Mot. Summ. J. 198—99, ECF No. 22-1. Even if Plaintiff Surface was discriminated against for being white/Anglo, any punishment that Plaintiff Chavez would have received for his association with Plaintiff Surface is not based on Plaintiff Chavez's own race, which is required in order to make a prima facie case. Rivera, 309 F.Supp.3d at 448.

Plaintiff Chavez did not establish a violation of the First Amendment for his association with Plaintiff Surface, and therefore cannot use Section 1983 as a vehicle to 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 this claim.

b. Retaliatory Arrest

Plaintiff Chavez 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. 17, ECF No. 27. To succeed on a retaliatory arrest claim under Section 1983, Plaintiff Chavez needs to show that “the official acted with retaliatory motive” and that Plaintiff Chavez 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 Chavez argues that “the one count warrant application omitted a contradictory statement” made by another employee of the Department. Resp. 17, ECF No. 27. Not only were there “material omissions” in the warrant application, in his deposition, Plaintiff Chavez states that the Department “maliciously fabricated facts or what—or their beliefs, their opinions to make this arrest against me.” Chavez Dep., Mot. Summ. J. 196, ECF No. 22-1. He claims that “everything” was fabricated and states that there was no probable cause, which is why it got “dismissed” from the DA's Office. Id. at 197.

Alternatively, instead of alleging maliciously fabricated facts, Plaintiff Chavez 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. 18, ECF No. 27. 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 Chavez, the inexperience of the investigating detective, coupled with the maliciously fabricated facts “rais[es] a genuine issue of material fact as to whether probable cause existed.” Id.

“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).

Prior to his arrest, the Department investigated claims made to IAD by Sergeant Pagitt and Officer Ibarbo. Mot. Summ. J. 2—3, ECF No. 22. Based on the evidence submitted to IAD and the testimony from Officer Ibarbo and Sergeant Pagitt, Defendant El Paso “had sufficient information to determine from the totality of the circumstances that Plaintiff Chavez had committed the offense of Official Oppression.” Mot. Summ. J. 19—20, ECF No. 22. And when confronted with inconvenient facts about the contents of the evidence submitted to IAD to kick off the investigation, Plaintiff Chavez had no choice but to agree that what was contained in the evidence creates sufficient probable cause. Chavez Dep., Mot. Summ. J. 197, ECF No. 22-1.

Plaintiff Chavez “has failed to identify any facts or evidence that there was a “material omission” in the warrant application.” Reply 7, ECF No. 29. And the Court disagrees with Plaintiff Chavez's assertions that maliciously fabricated facts and the detective's inexperience contributed to a lack of probable cause thereby raising a genuine issue of material fact. Without more, Plaintiff Chavez is unable to meet this burden.

Plaintiff Chavez did not establish that he was a victim of retaliatory arrest and therefore cannot use Section 1983 as a vehicle to 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 this claim.

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

Plaintiff Chavez 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 Chavez failed to make a prima facie case for all claims alleged except for age discrimination under the ADEA, 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 Chavez.

At the time that the complaints against Plaintiff Chavez arose, the IAD within the Department had no other choice but to investigate the allegations. Mot. Summ. J. 10, ECF No. 10. Per the Department's policy, “an administrative investigation was started into the allegations raised against Plaintiff Chavez to determine their legitimacy.” Id. “Each step of IAD's investigation was done in accordance with standard policies and procedures when investigating complaints of sexual harassment.” Id.

It was not until after the IAD investigation was complete that the Department realized Plaintiff Chavez's actions were not just a violation of the Department's policies but could also rise to the criminal level. Id. Evidence was collected and submitted, and eventually a magistrate found enough probable cause to sign off on an arrest warrant charging Plaintiff Chavez with Official Oppression. Id. The results from the IAD investigation were then turned over to the DRB, which made its own determination of Plaintiff Chavez's conduct, and independently sustained the termination of his employment. Id. at 11.

Defendant El Paso, and the Department, took the steps necessary to identify and investigate the claims made against Plaintiff Chavez, which, unfortunately for Plaintiff Chavez resulted in his termination. At the time of his termination, “Plaintiff Chavez was expressly informed of the policy violations that formed the basis of his termination.” Reply 10, ECF No. 29. An undesirable outcome for Plaintiff Chavez does not mean that the Department or Defendant El Paso engaged in any unlawful behavior or discriminated against Plaintiff Chavez 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 Adan Chavez's Claims and Brief in Support,” ECF No. 22, 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 Adan Chavez's Claims and Brief in Support,” ECF No. 22, is GRANTED.

IT IS FURTHER ORDERED that because Defendant Pete Pacillas is sued in his official capacity, this Court applies ail 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