Clark v. City of Alexandria

Case: 23-30732       Document: 69-1      Page: 1     Date Filed: 09/18/2024




        United States Court of Appeals
             for the Fifth Circuit                                United States Court of Appeals
                             ____________                                  Fifth Circuit

                                                                         FILED
                               No. 23-30732                      September 18, 2024
                             ____________                           Lyle W. Cayce
                                                                         Clerk
Darrell Eugene Clark; Reginald David Cooper;
Cedric Linbert Green,

                                                       Plaintiffs—Appellants,

                                    versus

City of Alexandria; Daryl Louis Terry;
Jarrod Daniel King; Patrick Ramon Vandyke;
Christopher Louis Cooper,

                                        Defendants—Appellees.
               ______________________________

               Appeal from the United States District Court
                  for the Western District of Louisiana
                        USDC No. 1:20-CV-1581
               ______________________________

Before Jones, Smith, and Ho, Circuit Judges.
Jerry E. Smith, Circuit Judge:
       Cedric Green, Darrell Clark, and Reginald Cooper, one demoted and
two former police officers, appeal a litany of rejected employment discrimina-
tion claims against the City of Alexandria. The district court granted sum-
mary judgment to the city primarily because the plaintiffs failed to present
competent summary judgment evidence. We affirm: Plaintiffs’ citations to
the complaint are not evidence, and the proffered evidence cannot hurdle
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                                       No. 23-30732


summary judgment’s evidentiary bar.

                                             I.
        This case arises out of an alleged thirty-plus-year history of “inten-
tional and systemic” discrimination against black officers in the Alexandria
Police Department (“APD”). 1 Clark, Cooper, and Green spent 28, 32, and
30 years, respectively, with APD before Clark’s and Cooper’s terminations
and Green’s demotion. 2 They allege that over those years, many officers and
supervisors—including Jerrod King, the Chief of Police between May 2018
and November 2020—repeatedly demeaned, belittled, and attacked them on
the basis of their race.
        The APD Chief is an appointed position, but the remaining command
staff positions are seniority-based. By 2019, black officers held each of those
seniority-based positions. In one of the complained-of statements, at least
one officer referred to that all-black command staff as the “colored coali-
tion.” And, according to the plaintiffs, King began to circumvent his com-
mand staff at roughly the same time, relying instead on white officers further
down the pecking order.
        Fed up with King’s behavior, Clark, Cooper, and Green filed HR com-
plaints against King in 2019, alleging harassment and a hostile work environ-
ment. The city pulled King off duty for a few months to investigate those
claims.


        _____________________
        1
        Many of the plaintiffs’ factual assertions are relevant to specific claims discussed
below. But this section will lay out the main details.
        2
         Clark had reached the level of Lieutenant and Commander of the APD Narcotics
Division before being fired; Cooper reached Assistant Chief before his termination; and
Green reached Deputy Chief before returning to being a Lieutenant upon the defunding of
the Deputy Chief position and his subsequent demotion to Sergeant.




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                                             No. 23-30732


          In March 2020, during King’s leave, the plaintiffs filed a report with
the FBI unrelated to their complaints against King. They had become aware
of an incident involving another APD officer, Kenny Rachal, who had beat,
pistol-whipped, and choked an unarmed black suspect, Daquarious Brown.
In plaintiffs’ view, APD had not investigated the incident sufficiently, and
they believed that the failure was indicative of APD’s even deeper racial
issues.
          Shortly after their FBI report, King returned to active duty. On his
return, APD began to investigate plaintiffs over allegedly minor or fictitious
infractions, proceeding to find novel justifications to discipline them. 3
Armed with the results of those investigations, the city fired Clark and
Cooper and demoted Green. 4
          The city justified Clark’s firing by claiming he had misused the police
department’s Thinkstream platform, accessing it for “non-APD purposes on
multiple instances” in violation of “well-established rules and regulations
. . . and state statutes.” 5 Allegedly, he had run inquiries on King and fourteen
other individuals for various personal purposes, despite that APD Rule
#609.5 expressly prohibited such personal inquiries.
          The city dismissed Cooper because he had impermissibly dissemin-
ated police information and used or accessed city resources, equipment,
and/or authority. Specifically, in an interrogation, Cooper had denied pro-
viding city information to anyone outside the department—but a polygraph
          _____________________
          3
              They had relatively little, if any, disciplinary history.
          4
          APD terminated Clark on June 25, 2020. A month later, it let Cooper go. Then,
over six months later, it demoted Green.
          5
        Thinkstream provided access to the Louisiana Law Enforcement Telecommuni-
cations System (“LLETS”), and the FBI’s National Crime Information Center
(“NCIC”).




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                                       No. 23-30732


showed that to be a lie—and he had improperly contacted the mother of a
person involved in a lawsuit against the city.
        Finally, the city demoted Green because he had given Cooper, by then
a former officer, an employment list containing the home address and per-
sonal phone number of every APD officer—and then he lied about it in an
investigation. He recanted that lie in the pre-polygraph interview several
days later, but he had not volunteered the correction before then.
        Plaintiffs believed that the investigations were mere pretexts to justify
their firings and demotion, describing them as the culmination of years of dis-
crimination and as retaliation for their HR complaints and FBI report. So,
they filed unsuccessful discrimination claims with the EEOC. Plaintiffs sued,
alleging a litany of unlawful actions by a variety of actors. 6 They described
the discrimination in APD as “persistent, historical, and widespread” such
that it became “so common and well-settled as to constitute a custom that
fairly represent[ed] the APD’s policy.”
        In a thorough and detailed 34-page order, the district court granted
summary judgment to the defendants in full. Clark, Cooper, and Green
appeal, maintaining only their claims against the city.

                                            II.
        We review summary judgments de novo, viewing all facts and drawing

        _____________________
        6
          Several plaintiffs and defendants included in the Third Amended Complaint
(“TAC”) are not on this appeal. Clark, Cooper, and Green also brought a wiretapping
claim under 

 that they do not pursue on appeal. Their complaint included
(1) unlawful discrimination under 

 and 1983, Title VII, the Louisiana
Employment Discrimination Law (“LEDL”), La. R.S. 23:332, and the Louisiana Human
Rights Act, La. R.S. 51:2231; (2) a hostile work environment under Title VII; and (3) retal-
iation in violation of the First and Fourteenth Amendments, § 1983, and the Louisiana
whistleblower statute, La. R.S. § 23:967.




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                                        No. 23-30732


all inferences in the light most favorable to the nonmoving party. Brandon v.
Sage Corp., 

, 269–70 (5th Cir. 2015) (citations omitted). We
affirm a summary judgment where the nonmovant shows “no genuine dis-
pute as to any material fact . . . .” Fed. R. Civ. P. 56(a). To make a show-
ing of a genuine dispute of material fact, “the party opposing summary judg-
ment is required to identify specific evidence in the record and to articulate
the precise manner in which that evidence supports his or her claim.” 7 “A
fact is material only if its resolution would affect the outcome of the action,
and an issue is genuine only if the evidence is sufficient for a reasonable party
to return a verdict for the nonmoving party.” Brandon, 

(internal quotation marks and citation omitted).

                                              III.
        Plaintiffs assert the court erred by granting summary judgment on the
(A) hostile work environment; (B) retaliation; (C) whistleblower; (D) dis-
crimination; and (E) Monell claims. We address each in turn.

                      A. The Hostile Work Environment Claims
        “A hostile work environment claim is composed of a series of separate
acts that collectively constitute one unlawful employment practice.” 8 To
succeed, the plaintiff must show that
        (1) the employee belonged to a protected class; (2) the employ-
        ee was subject to unwelcome harassment; (3) the harassment

        _____________________
        7
         Diaz v. Kaplan Higher Educ., L.L.C., 

 (5th Cir. 2016) (emphasis
omitted) (quoting Ragas v. Tenn. Gas Pipeline Co., 

 (5th Cir. 1998)); see
also Owens v. Circassia Pharms., Inc., 

, 824 (5th Cir. 2022); Willis v. Cleco Corp.,

 (5th Cir. 2014).
        8
          Wantou v. Wal-Mart Stores Tex., L.L.C., 

, 433 (5th Cir. 2022) (quot-
ing Nat’l R.R. Passenger Corp. v. Morgan, 

 (2002)), cert. denied, 

 (2023).




                                                     5
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                                       No. 23-30732


        was based on the protected class; (4) the harassment affected a
        “term, condition, or privilege” of employment; and (5) the
        employer knew or should have known of the harassment and
        failed to take prompt remedial action.[ 9]
        Harassment generally takes the form of “discriminatory intimidation,
ridicule, and insult” that rises to the level of “hostile or abusive.” 10 But an
“environment so heavily polluted with discrimination as to destroy com-
pletely the emotional and psychological stability of minority group workers,
merely presents an especially egregious example of harassment. It does not
mark the boundary of what is actionable.” Harris, 510 U.S. at 22 (cleaned
up).
        “For harassment to affect a term, condition, or privilege of employ-
ment, it ‘must be sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment.’”
Wantou, 23 F.4th at 433 (quoting West, 960 F.3d at 741–42). The plaintiff
must show subjective awareness of the hostility or abusiveness and that his
awareness is objectively reasonable. Id. (quoting Faragher v. City of Boca
Raton, 

 (1998)).
        We consider “[t]he totality of the employment circumstances [to]
determine[] whether an environment is objectively hostile.” West, 960 F.3d
at 742 (citing Harris, 510 U.S. at 23). Relevant considerations include
(1) “the frequency of the discriminatory conduct”; (2) “its severity”;
(3) “whether it is physically threatening or humiliating, or a mere offensive

        _____________________
        9
          Bye v. MGM Resorts Int’l, Inc., 

 (5th Cir. 2022), cert. dismissed,

 (2023) (cleaned up); see also Wantou, 23 F.4th at 433 (quoting West v. City
of Hous., 

, 741–42 (5th Cir. 2020)).
        10
         Harris v. Forklift Sys., Inc., 

 (1993) (quoting Meritor Savings
Bank, FSB v. Vinson, 

 (1986)).




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                                       No. 23-30732


utterance”; and (4) “whether it unreasonably interferes with an employee’s
work performance.” Harris, 

. “No single factor is determina-
tive[,]” but “a single incident . . ., if sufficiently severe, could give rise to a
viable Title VII claim as well as a continuous pattern of much less severe
incidents of harassment.” EEOC v. WC&M Enters., Inc., 

(5th Cir. 2007) (citations omitted).

                                           1. Clark
         The court rejected Clark’s claims because, of his nine allegations,
(1) most bore no relation to race; (2) two involved harassment directed at
someone other than him; and (3) the one comment King made that related to
race and was directed, at least in part, at Clark, could not, standing alone,
establish a claim of a hostile work environment sufficient to survive summary
judgment.
         Clark responds by pointing to several claims in the complaint about
the use of racial epithets and to his deposition, where he asserted various
claims of race-based hostility. But “conclusory allegations, speculation, and
unsubstantiated assertions are inadequate to satisfy the nonmovant’s burden
in a motion for summary judgment.” 11 So, as the city points out, Clark’s
complaint does not count as summary judgment evidence, nor do his motions
or responses. See Wallace v. Tex. Tech Univ., 

 (5th Cir.
1996).
         Because Clark’s motion for summary judgment rests almost entirely
on his complaint, the court may have construed Clark’s claims too gener-

         _____________________
         11
          Ramsey v. Henderson, 

 (5th Cir. 2002) (internal quotation marks
and citation omitted); see also Ragas, 

 (discussing the Celotex trilogy’s sum-
mary judgment standards and quoting Skotak v. Tenneco Resins, Inc., 

, 915–16
& n.7 (5th Cir. 1992)).




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                                 No. 23-30732


ously. Still, even if we do the same and consider his affidavit and deposition,
he has not provided sufficient evidence of a hostile work environment.
       Clark’s affidavit contains the following broadly-described claims:
(1) that white officers received better positions than black officers; (2) that
white officers received better uniforms and equipment than black officers;
(3) that white officers were punished less severely than black officers, e.g.,
Sergeant Nassif’s demotion was overturned after he called a Patrolman
“monkey boy”; (4) that Clark had been unfairly dismissed; and (5) that racial
bias led to circumvention of his commands. Similarly, Clark’s deposition
asserts that (6) King permitted the “colored coalition” comment; (7) APD
did not hire or promote many black officers; (8) King circumvented those
black officers high up in the chain of command, including Clark; (9) King
“allowed Van Dyke [sic] and Cooper,” two other black officers (and since-
dismissed defendants), to verbally attack Clark while King “stood there and
grinned at it”; (10) King held a meeting and looked at Clark during it in a
“harassing” way; and (11) Clark had been terminated for an activity that
other officers did and for which they “only got one-day’s suspension.”
       Few of the allegations allege any kind of harassment. Most relevant is
that King permitted an APD officer to make the “colored coalition” com-
ment without reprimand. That comment was racially motivated, directed at
Clark, and—as the district court noted—both “objectively and subjectively
offensive.” Much weaker is the verbal abuse Vandyke and Cooper inflicted
on Clark, who offers no evidence that their words or actions carried any racial
animus. Finally, Clark submits that King stared at him in a harassing way
during King’s first meeting back from his HR suspension. But King had per-
fectly understandable, non-racial, justifications for his “harassing stare”—
King and Clark had not gotten along since King’s time as a probationary
sergeant, and then Clark had filed an HR complaint against King, leading to
King’s suspension. Whatever the merit or subject matter of the HR com-



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                                       No. 23-30732


plaint, the evidence supports that King singled out Clark for a “harassing
stare” because of that complaint and their history, not because of Clark’s
race.
        Combined, we find no reason to disturb the district court’s reasoned
and thoughtful analysis of Clark’s claims. First, many of Clark’s allegations
fail to assert harassment. Second, of those allegations that rise to the level of
harassment, Clark offers no evidence supporting a claim that they were raci-
ally charged. 12 Third, and finally, the remaining “colored coalition” and
“monkey boy” allegations fail to rise to the level of a hostile work envir-
onment as required by our precedent. 13 The two statements are “unrelated
instances of alleged harassment by different individuals,” and, though highly
demeaning, “were not physically threatening.” Price v. Valvoline, L.L.C.,

, 1067 (5th Cir. 2023). Instead, the one statement made about
Clark, and the other made to and about someone else, fall more in the bucket
of “offensive utterances.” Wantou, 23 F.4th at 433 (cleaned up). And,
finally, Clark proffers no evidence that those statements interfered with his
ability to do his job.
        In sum, Clark has not presented sufficient summary judgment evi-
dence to establish a genuine dispute of material fact. Therefore, the court
properly granted summary judgment on his hostile work environment claim.



        _____________________
        12
          See Hernandez v. Yellow Transp., Inc., 

 (5th Cir. 2012) (We “do
not consider the various incidents of harassment not based on race.”).
        13
           See Molden v. E. Baton Rouge Par. Sch. Bd., 

, 316 (5th Cir. 2017)
(noting that our “standard for workplace harassment in this circuit is . . . high” (omission
in original) (quoting Gowesky v. Singing River Hosp. Sys., 

 (5th Cir. 2003));
see also Wantou, 23 F.4th at 433; White v. Gov’t Emps. Ins. Co., 

, 381 n.35
(5th Cir. 2012); Collier v. Dall. Cnty. Hosp. Dist., 

, 377–78 (5th Cir. 2020).




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                                      No. 23-30732


                                         2. Cooper
        The court similarly dismissed Cooper’s claims, noting that several
were thoroughly unrelated to race and two of the racially offensive comments
did not affect a term, condition, or privilege of his employment. The court
took more time to assess Cooper’s allegation that an APD officer overtly
referenced the KKK and called him the n-word. As Cooper recounts it, in
2014 or 2015 a white captain embarrassed Cooper (then at the lower rank of
sergeant) by publicly suggesting he should not have made sergeant. Then,
driving home the incident’s racial component, one of the white sergeants in
the room asked the captain to show Cooper “the silver dollar in [his]
pocket.” 14 After the captain left the room, one of the other sergeants shouted
at Cooper “look out n*****, the Klan is getting bigger.” Cooper contends
that that incident, combined with the day-to-day racism he experienced over
his long career, suffices to show a hostile work environment.
        The district court accurately described that incident as “humiliating,
highly offensive, and . . . undoubtedly warrant[ing] discipline.” Still, one
incident over Cooper’s 30-year career with the APD—well before his pro-
motion to Assistant Chief—suggested that it did not affect any term of his
employment. So, Cooper had provided “insufficient evidence of severe or
pervasive conduct altering the conditions of his employment.”
        We agree. Cooper never reported the silver-dollar incident to his
superiors, HR, or the city. The event, severe as it was, occurred only once
and did not seem “unreasonably [to] interfere[] with [his] work perfor-

        _____________________
        14
           “The Silver Dollar Group was an offshoot of the Ku Klux Klan white nationalist
terrorist group, composed of cells that took up violent actions to support Klan goals. The
group was largely found in Mississippi and Louisiana and was named for their practice of
identifying themselves by carrying a silver dollar.” Silver Dollar Group, Wikipedia,
https://en.wikipedia.org/wiki/Silver_Dollar_Group (last edited Feb. 8, 2024).




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                                       No. 23-30732


mance.” Weller v. Citation Oil & Gas Corp., 

 (5th Cir. 1996)
(citation omitted). Then, his remaining allegations largely generalize haras-
sing statements and incidents that only occasionally centered on race. Those
claims, though problematic, do not clear the bar of “conduct that is so severe
and pervasive that it destroys a protected classmember’s opportunity to suc-
ceed in the workplace.” 

 (citing DeAngelis v. El Paso Mun. Police Officers
Ass’n, 

 (5th Cir. 1995)).
       Therefore, the court properly granted summary judgment on
Cooper’s hostile work environment claim.

                                           3. Green
       The court likewise dismissed Green’s claims of a hostile work envir-
onment. It explained that “[d]espite being offensive and warranting disci-
pline, four of Green’s five allegations relate to the harassment of someone
other than Green[, so they] are of limited evidentiary value.” Then, it
declared that, despite the one “trunk monkey” comment directed at him,
“Green does not allege harassment that is ‘severe or pervasive’ enough to
‘affect a term, condition, or privilege’ of his employment, particularly when
considered against the backdrop of Green’s roughly 30-year-long tenure with
the APD and eventual promotion to Deputy Chief.”
       On appeal, Green disputes the court’s weighing of the allegations of
harassment of others and highlights some of the allegations he made in his
affidavit. But our independent review confirms that Green presented insuffi-
cient summary judgment evidence to rescue his claim. Unlike Clark, Green
at least identifies some valid summary judgment evidence, detailing several
racist incidents. But, only one such harassing incident was directed at
Green―the “trunk monkey” incident. 15 Even combining that with the dis-
       _____________________
       15
            The allegations that APD did not hire minority candidates and that King refused




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                                          No. 23-30732


criminatory “chicken and watermelon” incident, 16 Green’s claim still lacks
even the reprehensible statements and behaviors seen in Cooper’s claim, and
he presents no other competent evidence of repeated, low-level, racist
behavior that would be necessary to raise his claim from occasional “offen-
sive utterances” to an “abusive or hostile” environment. So, he has not
shown a severe or pervasive enough hostile work environment under our
precedent. 17
        Therefore, we affirm the summary judgment on Green’s claim of a
hostile work environment.

                                  B. The Retaliation Claims 18
        “As a general matter, the First Amendment prohibits government
officials from subjecting an individual to retaliatory actions for engaging in
protected speech.” Nieves v. Bartlett, 

 (2019) (cleaned up).
To succeed on a First Amendment retaliation claim, the plaintiff “must show
that (1) he suffered an adverse employment decision; (2) his speech involved
a matter of public concern; (3) his interest in commenting on matters of
public concern outweighs the [d]efendant’s interest in promoting efficiency;
and (4) his speech motivated the adverse employment decision.” Beattie v.
Madison Cnty. Sch. Dist., 

 (5th Cir. 2001) (cleaned up).

        _____________________
to reappoint Green because of insufficient loyalty are not allegations of harassment. There-
fore, we need not address them.
        16
           Green, in his affidavit, alleges that another black officer, “Vincent Parker, . . .
had a watermelon left in his vehicle because he refused to purchase a dinner a white officer
was selling. The white officer then brought a box of chicken to roll call and placed it in front
of Officer Parker and stated ‘I heard you people like chicken and watermelon.’”
        17
             See supra note 13 (collecting cases).
        18
         Plaintiffs pursue only a First Amendment retaliation claim, not a Title VII claim.
So, we analyze only that claim.




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                                       No. 23-30732


        Making that showing establishes a presumption of retaliation, but the
defendant may still rebut it by showing “by a preponderance of the evidence
that they would have come to the same conclusion in the absence of the
protected conduct.” Id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 

 (1977)). A plaintiff may then “refute that showing
by evidence that his employer’s ostensible explanation for the discharge is
merely pretextual.” Coughlin v. Lee, 

 (5th Cir. 1991).
        The court dismissed the plaintiffs’ claims after making three findings:
First, that the plaintiffs had not presented any direct evidence of retaliation.
Plaintiffs do not challenge that ruling. Second, that the plaintiffs “have [not]
identified any evidence as to when they allegedly reported this conduct to
. . . the FBI or when the APD learned of this alleged contact.” Thus, plaintiffs
had not presented enough evidence “from which a jury could infer a causal
connection between [plaintiffs’] contact with . . . the FBI and their respective
adverse employment actions.” Third, that the city had rebutted any prima
facie case the plaintiffs may have established because the city presented legiti-
mate, non-retaliatory justifications for each adverse action: (1) Clark misused
Thinkstream, (2) Cooper failed a polygraph, and (3) Green lied during an
Internal Affairs investigation.
        Plaintiffs respond by citing—for the first time—Cooper’s Pre-
Disciplinary Hearing transcript, where Cooper stated that the plaintiffs had
gone to the FBI in late March 2020. 19 And, as the plaintiffs claim, the
retaliatory investigations began in April 2020. That sequence of events could


        _____________________
        19
          As in the harassment section of their brief, plaintiffs rely extensively on the TAC.
As in the harassment section of this opinion, we do not address those claims or citations
because a complaint is not competent summary judgment evidence, and it is not the court’s
role to comb through the record to find support for their claims.




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                                          No. 23-30732


have created a plausible inference of causation. 20
        But, shortly after linking those, plaintiffs undercut their assertions
entirely, pointing out that the city learned about the FBI report during the
investigations. In other words, the plaintiffs’ own evidence states that the FBI
report did not motivate the investigations. They have presented a chronol-
ogy that leads to the inescapable conclusion that King and APD were inves-
tigating Clark, Cooper, and Green before they found out about the report to
the FBI. 21 Therefore, the claims of First Amendment retaliation cannot
survive.
                             *        *        *         *      *
        Even if plaintiffs had shown that their “speech motivated the adverse
employment decision[,]” establishing a presumption of retaliation, the city
has rebutted it by offering non-retaliatory reasons, and the plaintiffs have not
shown pretext. Beattie, 

. We address each plaintiff’s failure
in turn.

                                             1. Clark
        Clark contends that, after reporting to the FBI his suspicions of
Rachal’s alleged use of excessive force against Brown, APD subjected him to
“a 60-day illegal investigation[,] . . . placed [him] on administrative leave,
[and then] questioned, polygraphed, and terminated [him].” In that investi-
gation, attorneys apparently accused him of “helping Daquarious Brown to

        _____________________
        20
          See Brady v. Hous. Indep. Sch. Dist., 

 (5th Cir. 1997); see also
Mooney v. Lafayette Cnty. Sch. Dist., 

, 454–55 (5th Cir. 2013).
        21
           Plaintiffs point nowhere else but Cooper’s Pre-Disciplinary hearing on July 15,
2020, to establish that the City knew of the FBI report. So, the district court likely correctly
concluded that no jury “could infer a causal connection between Clark, Cooper, and
Green’s contact with . . . the FBI and their respective adverse employment actions.”




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                                  No. 23-30732


obtain an attorney, giving information to others outside the APD, and aiding
in a federal lawsuit against the [c]ity . . . .” Later, APD interrogated Clark
over his use of Thinkstream, accusing him “of using the system for personal
use or gain in violation of state usage rules.” Eventually, the city fired him
for that misuse of Thinkstream. All of that, he claims, occurred in retaliation
for his FBI report.
       To rebut that claim of retaliation, the city relies on former APD Chief
Ronney Howard’s testimony that “[a]n APD officer found to have repeat-
edly misused the NCIC and LLETS information systems would be termin-
ated regardless of any other reason.” But Clark contends that the investiga-
tions were pretextual, pointing to the fact that no “senior officer of the rank
of Lieutenant and above [was] ever placed on administrative leave, investi-
gated, polygraphed, or terminated” besides those who complained to HR
about King’s behavior.
       Clark’s pretext claim stretches a bridge too far. In essence, it asks us
to believe that other similarly situated high-ranking APD officers misused
Thinkstream and that they were not fired. Yet he offers no evidence whatso-
ever. Instead, he pivots and suggests that two wrongs make a right, contend-
ing that another officer falsified other officers’ Thinkstream exam data with-
out punishment, so Clark’s misuse was also permitted.
       We disagree with that characterization. Misuse for personal gain and
misuse that enables officers to continue to use Thinkstream for legitimate
investigations are apples and oranges. Clark has presented no evidence of
any similarly situated officers to rebut the city’s non-retaliatory justification.

                                     2. Cooper
       To allege pretext around his firing for lying during a polygraph,
Cooper points exclusively to his and other plaintiffs’ testimony that “APD’s
use of polygraphers was unreliable and motivated by retaliation, as well as




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                                       No. 23-30732


alleging the general unreliability of polygraphs.” That self-serving testimony
nowhere suggests that the investigation into his improper activities was
pretextual 22—nor has he cited any evidence suggesting his activities were
proper.
        In other words, Cooper offers no evidence at all. Further, as the city
notes, the Louisiana Supreme Court has permitted the use of polygraph
results in civil service disputes. See Evans v. DeRidder Mun. Fire, 

, 66–69 (La. 2002).
        Therefore, Cooper has not rebutted the city’s non-retaliatory justifi-
cation for his firing or shown pretext.

                                           3. Green
        Green recounts a litany of activities unsupported by summary judg-
ment evidence—but repeatedly referencing the TAC—before finally assert-
ing that “there is no evidence [he] lied . . . as he explained that the variance
in his statements were [sic] due to his having . . . review[ed] his notes and
refresh[ed] his memory.”
        We reject that specious claim. Green did not come forward to correct
the record on his own; instead, he just changed his tune in a later interro-
gation, in the face of a polygraph. Either he lied the first time, or he lied the
second, but either way, he lied. The city has offered a rational, nonretaliatory
reason for his demotion, and Green’s repeated claim that whether he lied
presents a genuine dispute of material fact holds no water.

        _____________________
        22
           See Jones v. Gulf Coast Rest. Grp., Inc., 

 (5th Cir. 2021) (“[T]his
court has held that a plaintiff’s summary judgment proof must consist of more than ‘a mere
refutation of the employers legitimate nondiscriminatory reason.’ ‘Merely disputing’ the
employer’s assessment of the plaintiff’s work performance ‘will not necessarily support an
inference of pretext.’” (internal citations omitted)).




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                                      No. 23-30732


        Otherwise, Green offers no new evidence that the dismissal for lying
was mere pretext, and he certainly does not offer enough to rebut the city’s
nondiscriminatory justifications. 23

                             C. The Whistleblower Claims
        Plaintiffs’ whistleblower claims rest on Louisiana’s whistleblower
statute, La. R.S. 23:967(A), which “provides protection to employees against
reprisal from employers for reporting or refusing to participate in illegal work
practices,” Hale v. Touro Infirmary, 

 (La. App. 4th Cir.
2004). To succeed on such a claim, the plaintiffs must establish that (1) the
employer “violated the law through a prohibited workplace act or practice;”
(2) the plaintiff advised the employer of the violation; (3) the plaintiff “then
refused to participate in the prohibited practice or threatened to disclose the
practice;” and (4) the employer fired the plaintiff because of his “refusal to
participate in the unlawful practice or threat to disclose the practice.” 

.
        The district court granted summary judgment on those claims in a
footnote. As it explained, the claims arise “from [the plaintiffs’] disclosure
of this same alleged ‘civil rights violation’” as the First Amendment claims.
But, for the same reasons that the First Amendment claims failed, specifically
the failure to point to any causal chain, the whistleblower claims failed too.
        The plaintiffs contend the court erred because, unlike in the case the
district court relied on, Hale, the plaintiffs here “have not failed to establish
a violation of the law . . . .” Then, they rest on their First Amendment
retaliation claims to support the causal chain for the whistleblower claims.


        _____________________
        23
          Cf. 

 at 368–69 (requiring “substantial evidence” to make a showing of pretext
and such a showing for “each of the nondiscriminatory reasons the employer articulates”).




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                                         No. 23-30732


        But, as discussed above, the plaintiffs have failed to establish a viola-
tion of the First Amendment. And, as the city notes, plaintiffs have not
shown any independent basis for reversal beyond the claimed First Amend-
ment violation. Therefore, we affirm the summary judgment on the whistle-
blower claims.

                               D. The Discrimination Claims
        Clark, Cooper, and Green bring discrimination claims under Title VII,
Section 1981, and the LEDL, each of which prohibits racial discrimination in
employment. The district court applied the three-part McDonnell Douglass
analysis and held that none of the plaintiffs could satisfy the first part’s fourth
prong—that they were “either replaced by someone outside his protected
group or . . . treated less favorably than similarly situated employees outside
the protected group.” See Johnson v. Iberia Med. Ctr. Found., 

, at *9 (W.D. La. Jan 27, 2023). We agree.
        Because the LEDL “is similar in scope to the federal prohibition
against discrimination set forth in Title VII . . ., Louisiana courts have looked
to the jurisprudence construing the federal statute . . . .” 24
        “A plaintiff who can offer sufficient direct evidence of intentional dis-
crimination should prevail . . . . However, because direct evidence of dis-
crimination is rare, the Supreme Court has devised an evidentiary procedure
that allocates the burden of production and establishes an orderly presenta-
tion of proof in discrimination cases.” 25 Under that “evidentiary proce-

        _____________________
        24
           Bustamento v. Tucker, 

, 539 n.9 (La. 1992); see also DeCorte v.
Jordan, 

 (5th Cir. 2007) (“Claims of racial discrimination in employment,
pursuant to 

 and the Louisiana Employment Discrimination Law, are gov-
erned by the same analysis as that employed for such claims under Title VII.” (citations
omitted)).
        25
             Nichols v. Loral Vought Sys. Corp., 

 (5th Cir. 1996) (citing Boden-




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                                       No. 23-30732


dure,” Clark, Cooper, and Green first must make a prima facie showing of
discrimination by proving they “(1) are members of a protected group;
(2) were qualified for the position at issue; (3) were discharged or suffered
some adverse employment action by the employer; and (4) were replaced by
someone outside their protected group or were treated less favorably than
other similarly situated employees outside the protected group.” 26 Only the
fourth prong is at issue here.
        The plaintiff does not meet the fourth prong where “his former duties
are distributed among other co-workers.” Ernst v. Methodist Hosp. Sys.,

 (5th Cir. 2021) (internal quotation marks and citation omit-
ted). Additionally, if he claims less favorable treatment, he must “point to a
comparator who was ‘similarly situated’ and received more favorable treat-
ment under nearly identical circumstances.” 

 (cleaned up).
        Upon the plaintiff’s making that prima facie showing, the defendant
may rebut it “by articulating a legitimate, nondiscriminatory reason for [its]
actions.” DeCorte, 

 (citation omitted). If the defendant does
so, the plaintiff must show that the defendant’s “proffered reason is [merely]
a pretext for discrimination.” Id.

                                           1. Clark
        The district court rejected Clark’s claim because the only fellow
employee whom Clark identified as treated differently for his use of Think-
stream, Corporal Fairbanks, was (1) supervised by someone other than
Clark’s supervisor, (2) two ranks lower than Clark, and (3) held a dramati-

        _____________________
heimer v. PPG Indus., Inc., 

 (5th Cir. 1993); McDonnell Douglas Corp. v. Green,

 (1973)).
        26
          McCoy v. City of Shreveport, 

 (5th Cir. 2007) (cleaned up), abro-
gated by Hamilton v. Dall. Cnty., 

 (5th Cir. 2023).




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                                          No. 23-30732


cally different role. In sum, the court found, “given the drastic differences
in their positional status, Clark and Corporal Fairbanks are not similarly
situated.” 27
        Clark does not attempt to rebut that claim, 28 resting instead on his
assertion that caselaw permits him to survive summary judgment if he proves
that his discharge was on account of race. Clark submits no such evidence,
though. He provides a detailed recount of his career and the events leading
up to his termination, and he suggests that other officers’ wrongful behavior
went unpunished. But he makes no showing that his termination had any-
thing to do with race. In essence, he presents nothing more than a repackag-
ing of his hostile work environment claim. That claim failed, and so too does
this one. 29

                                            2. Cooper
        The court granted summary judgment because Cooper provided no
evidence that he was either replaced outside his protected group or treated
less favorably than similarly situated employees outside the protected group.
Like Clark, Cooper contends that the history of racism in APD and King’s
“disdain for commanding black officers” show that his termination was moti-
vated by race.
        But Cooper, also like Clark, offers no tie between the asserted daily
racism and his termination. Like Clark, he cannot show that he was replaced
by someone outside of his protected group—he was replaced by a black

        _____________________
        27
           See Saketkoo v. Adm’rs of Tulane Educ. Fund, 

 (5th Cir. 2022);
Ernst, 

; Hinga v. MIC Grp., L.L.C., 

 (5th Cir. 2015).
        28
             He would fail if he tried.
        29
          Even if Clark had made out a prima facie claim, he makes no independent attempt
to show pretext. For the same reasons his pretext claims failed earlier, they would fail here.




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                                         No. 23-30732


woman. Further like Clark, he asserts no evidence that the city’s claimed
reasons for firing him were pretextual.
        Because Cooper does not tie any of the alleged racism to his termina-
tion, and because Cooper fails to rebut the city’s nondiscriminatory justifica-
tion for firing him, we affirm the summary judgment.

                                             3. Green
        The court granted summary judgment on Green’s discriminatory
demotion claim because “like Cooper, Green has not provided evidence indi-
cating that he was replaced outside his protected group or treated less favor-
ably than similarly situated employees outside the protected group with
respect to his demotion.” Instead, “[i]t is undisputed that . . . Green was
replaced with a black man.”
        On appeal, Green makes no new evidentiary contentions, relying
instead on the previously “alleged significant evidence that APD housed an
environment of race-based harassment and discrimination that affected every
aspect of a black officer’s employment.” Like Clark and Cooper, though, he
makes no effort to tie that discrimination to his demotion. Like Clark and
Cooper, Green also alleges that the city has presented only a pretextual justi-
fication for his demotion, but he does not even attempt to make a showing of
“substantial evidence.” Jones, 

. He relies on the same claims
he made earlier, and they fail here just as they did there.

                                    E. The Monell Claims
        We turn to the Monell claims. 30 To hold a city or municipality liable

        _____________________
        30
           A Monell claim is a § 1983 claim against a local government for “when execution
of a government’s policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts [an] injury” in violation
of the Constitution, as incorporated against the locality by the Fourteenth Amendment.




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                                         No. 23-30732


for the actions of its officers, a plaintiff must demonstrate “(1) an official
policy (or custom), of which (2) a policy maker can be charged with actual or
constructive knowledge, and (3) a constitutional violation whose ‘moving
force’ is that policy (or custom).” Newbury v. City of Windcrest, 

 (5th Cir. 2021) (internal quotation marks and citation omitted).
        The district court dismissed the Monell claims for lack of evidentiary
support of specific acts of racial discrimination by the city, much less any
evidence of a discriminatory policy or custom. On appeal, the plaintiffs
barely brief the issue, asserting nothing new, except that they faced discrimin-
ation so widespread in “hiring, promoting, and disciplining” that it had to
have been a custom. The city responds by noting that the plaintiffs make
several allegations but point to effectively no evidence, and they make no
legal claim. Plaintiffs do not attempt to remedy those infirmities in reply.
        Without anything more to go on, we revert to the above analysis of the
discrimination claims. The plaintiffs show no causation between any of the
alleged racism and their negative employment outcomes, and they fail to
establish a policy or practice that unconstitutionally deprived them of their
jobs. There must be some connection between those bad acts and whatever
lost property interest plaintiffs are asserting. Plaintiffs have presented none.
        Therefore, we affirm the summary judgment for the city on the Monell
claims.
                             *       *        *         *    *
        Plaintiffs have alleged numerous discriminatory actions and state-
ments over the course of decades. But they have only alleged them. Their
reliance on the complaint is insufficient to overcome the summary judgment

        _____________________
Monell v. Dep’t of Soc. Servs., 

 (1978).




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                                No. 23-30732


standard. Therefore, we reject their claims of a hostile work environment,
First Amendment retaliation, violation of Louisiana’s whistleblower law,
workplace discrimination, and Monell violations.
      The summary judgment is AFFIRMED.




                                        23