Appelle Es Brief
Appelle Es Brief
Appelle Es Brief
JOHNNY BLASH,
Appellant,
v.
Appellees.
__________________________________________________________________
BRIEF OF APPELLEES
__________________________________________________________________
Pursuant to FRAP 26.1 and 11th Cir. R. 26.1-1, 26.1-2, and 26.1-3,
that, to the best of their knowledge, information, and belief, what follows is a
complete list of all trial judges, attorneys, persons, associations of persons, firms,
case or appeal:
3. Brannen, Danny
5. Cronin, Donald A.
8. Marx, Robert N.
11.Pulaski County
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TABLE OF CONTENTS
STATEMENT OF CASE………………………………………………….……….2
I. Introduction ................................................................................................9
II. Blash’s evidence fails under the McDonell Douglas analysis. ................ 10
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dismissal .........................................................................................16
C. Blash has not shown that the articulated basis for his dismissal was
2. There is no evidence that Blash’s race was the true reason for his
termination .....................................................................................25
issue of fact as to whether Sheriff Cape fired Blash because of his race
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VI. The Court properly dismissed Blash’s individual capacity claim against
VII. The Court properly ruled that the claims against former-Sheriff Cape are
CONCLUSION ........................................................................................................55
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TABLE OF AUTHORITIES
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981) …..…….10, 11
Alvarez v. Royal Atl. Developers, 610 F.3d 1253, 1266 (11th Cir.2010) ………….7
Best Canvas Products & Supplies v. Ploof Truck Lines, 713 F.2d 618 (11th Cir.
1983) ……………………………………………………………………………...16
Crawford v. Carroll, 529 F.3d 961 (11th Cir.2008) ….................36, 38, 47 n.14, 50
Crawford v. City of Fairburn, 482 F.3d 1305, 1309 (11th Cir.2007) …………….22
Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354 (11th Cir.1999)….28
Dixon v. Burke Cnty, Ga., 303 F.3d 1271 (11th Cir. 2002) …………………..46, 52
Eaves v. Work Force Central Florida, 623 Fed. Appx. 955, 960 (11th Cir.
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2015)……………………………………………………………………………....21
Howard v. Hyundai Motor Manufacturing Alabama, 754 Fed. Appx. 798, 804
Johnson v. City of Fort Lauderdale, 126 F.3d 1372 (11th Cir. 1997) ……………54
King v. v. Volunteers of Am., N. Alabama, Inc., 502 Fed. App’x. 823, 828
Lewis v. City of Union City, Georgia [“Lewis I”], 918 F.3d 1213 (11th Cir. 2019)
Lewis v. City of Union City, Georgia, [Lewis II], 934 F.3d 1169 (11th Cir. 2019)
………………………………………………………………………………….....29
Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236 (11th Cir.1998) …36, 37, 50
Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181 (11th Cir.1984) …………28
Prellitteri v. Prine, 776 F.3d 777, 780-81 (11th Cir. 2015) ……………………...14
Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227 (11th Cir. 2016) ………...9, 10, 45
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Rioux v. City of Atlanta, 520 F.3d 1269 (11th Cir. 2008) …………………………53
Smith v. City of New Smyrna Beach, 588 Fed. App’x 965 (11th Cir. 2014) …35 n.9
Steger v. General Electric, 318 F.3d 1066 (11th Cir. 2003) ……………...32, 32 n.7
Stevens v. City of Forest Park, 635 Fed. Appx. 690 (11th Cir. 2015) ….39 n.10, 49
Stimpson v. City of Tuscaloosa, 186 F.3d 1328 (11th Cir.1999) ……..36, 37, 39, 50
Darnell v. Ford, 903 F.2d 556 (8th Cir. 1990) ……………………………48 n.15
Maestas v. Segura, 416 F.3d 1182 (10th Cir. 2005) ………………………48 n.15
Miller v. Polaris Laboratories, LLC, 797 F.3d 486, 490 (7th Cir. 2015) ………...43
Professional Ass’n of Coll. Educators v. El Paso County Cmty. Coll. Dist., 730
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Saye v. St. Vrain Sch. Dist. RE-IJ, 785 F.2d 862 (10th Cir. 1986) … ………48 n.15
Strahan v. Kirkland, 287 F.3d 821 (9th Cir. 2002) … ……………………...49 n.15
Statutes:
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Counsel for the Appellees do not believe that oral argument is necessary or
would be particularly helpful to the Court in this matter. This appeal concerns the
underlying case. Thus, all issues can be adequately addressed in this Court through
briefing.
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STATEMENT OF ISSUES
3. Whether Blash showed that the basis articulated by Cape and Brannen, in his
properly dismissed for failure to state a claim upon which relief may be
granted;
8. Whether the District Court properly ruled that Cape was entitled to qualified
immunity.
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STATEMENT OF CASE
from his employment as a deputy with the Pulaski County Sheriff’s Office on
December 1, 2014. [Doc. 58, ¶¶8, 20.] Blash was terminated by then-Sheriff
William Cape (now deceased) for interfering with a federal investigation. [Doc. 58,
¶23; Doc. 64-4, pp.2-3; Doc. 72-1, p.27:7-20.] Specifically, Blash warned Scott
Orta, a personal acquaintance, to stay away from postal worker Renee Howard,
who had become a cooperating witness in a narcotics investigation. [Doc. 58, ¶¶22-
24; Doc. 70-15, ¶¶4-7; Doc. 64-3, ¶11.] Blash was arrested and indicted for the
same conduct that led to his termination. 1 [Doc. 58, ¶¶36-38; Doc. 11-1.]
Brannen was an influential Captain when Cape was Sheriff. [See Doc. 70-
19, ¶¶5-7; Doc. 70-18, ¶16; Doc. 73-1, ¶¶11-12; Doc. 70-15, ¶¶9-10.] Blash
presented evidence that Brannen made racist statements, directed towards others,
while Cape was Sheriff. [Doc. 70-18, ¶27; Doc. 70-19, ¶11; Doc. 70-20, ¶14.]
behavior when called to his attention [e.g., Doc. 70-18, ¶30], but Cape did suspend
Brannen for four days and send him to anger management classes when Brannen
1
The criminal charges were later dropped, but there is no evidence in the record as
to why they dropped. [Doc. 11-1.]
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Blash presented evidence of two occasions on which rules regarding the use
of motor vehicles appear to have been enforced differently for Black versus White
had ever pressured Cape to fire Blash or any other Black deputy. [See generally,
Appellant’s Brief; Docs. 70-15 – 70-20.] Blash presented no evidence that Cape
or summer of 2014, Blash was told by Orta that postal worker Howard had been
approaching him about his pain medication. [Doc. 70-15, ¶4.] Also in 2014,
Pulaski County Deputy Sheriff Jay Williams and Chief Investigator Robert
McGriff were part of a joint sting operation with United States Postal Service
(“USPS”) Investigator Jarrett Arrington. [Doc. 64-3, ¶¶3-4; Doc. 70-16, ¶10.] The
central target of the sting operation was Howard, who was suspected of stealing
prescription drugs from customers on her postal route. [Doc. 64-3, ¶4; Doc. 70-16,
¶¶10-11.]
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2014, as the sting operation was being planned, McGriff asked Blash—who had no
knowledge of the sting—if he could identify the male giving the pill bottle to
Howard from a video still. [Id., ¶14; Doc. 70-15, ¶5.] Blash assumed that the photo
was being shown to him as part of an investigation and identified the individual
giving the suspected pill bottle to Howard as Scott Orta. [Doc. 70-16, ¶14; Doc.
70-15, ¶5.] Blash later learned from McGriff that Howard had been arrested. [Doc.
70-15, ¶5.] It was McGriff’s “understanding that once Howard was arrested that
the investigation was over.” [Doc. 70-16, ¶18.] After her arrest, however, Howard
investigation—Blash took it upon himself to warn Orta to stay away from Howard.
[Doc. 58, ¶¶22-24; Doc. 70-15, ¶¶6-7; Doc. 64-3, ¶11.] Arrington told Williams
that a worried Howard had complained to him about being outed to Orta. [Doc. 64-
3, ¶¶11-13.] Williams and Arrington then spoke to Orta, who confirmed Blash’s
actions, and Arrington told Williams “that either [Williams] would advise [his]
Sheriff) Danny Brannen’s presence, informing Cape that Blash “had provided
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[Doc. 64-4, pp.2-3.] Brannen was silent in the conversation. [Doc. 72-1, pp. 29:10–
30:7.] Cape and Freemont decided to fire Blash. [Doc. 72-1, pp. 27:25 – 28:2.]
Cape told Brannen that he was going to fire Blash because Blash had
December 1, 2014, Cape told Blash that he was being terminated for interfering
with a federal investigation and offered to let him resign. [Doc. 58, ¶ 23; Doc. 64-
4, pp.2-3; Doc. 70-13, ¶13.] Brannen and Freemont were present for this meeting,
and Blash admitted to warning Orta to stay away from Howard. [Doc. 64-4, pp. 2-
3; Doc. 72-1, pp. 31:16-21, 32:20-33:5.] All Brannen said during this meeting
related to making arrangements for Blash to turn in his equipment. [Doc. 72-1,
p.32:6-9.] Blash requested a GBI investigation before he was fired, but Cape stated
that he had full autonomy to fire Blash. [Doc. 58, ¶29; Doc. 70-15, ¶12.] Blash
chose not to resign and was fired. [Doc. 58, ¶ 23; Doc. 64-4, pp.2-3.]
to add that decisions related to the admissibility of evidence are reviewed for abuse
of discretion. Watkins v. Southeastern Newspapers, Inc., 163 Fed. Appx. 823, 825
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SUMMARY OF ARGUMENT
discriminatory intent.’” Flowers v. Troup County, Ga., School District, 803 F.3d
1327, 1336 (11th Cir. 2015) (quoting Smith v. Lockheed–Martin Corp., 644 F.3d
1321, 1328 (11th Cir.2011)) (one alteration in original). The District Court
appropriately focused its Order: “To put it in a few words as possible: the real issue
influence over Defendant Cape’s hiring and firing decisions, as Blash has argued
again and again, but whether Defendant Cape acted with discriminatory intent
when he fired Blash.” [Doc. 101, p. 22.] The District Court’s conclusion on this
issue was correct as a matter of law and undisputed fact: “[T]here is nothing in the
record showing that race was a motiving factor behind [Cape’s] decision to
Blash was fired by former Pulaski County Sheriff William Cape after Cape
concluded that Blash had interfered with a USPS investigation. Despite not being
part of the investigation and not knowing whether his actions might compromise it,
Blash took it upon himself to warn Scott Orta, whom he had reason to believe the
worker who was the subject of the investigation. These actions resulted in Blash
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being fired by Sheriff Cape and indicted by a grand jury. No evidence in the record
calls these facts into question—the essential facts are all admitted by Blash.
As the District Court found, Blash has come forward with no evidence
whatsoever that shows that Blash’s race played any role in former Sheriff Cape’s
decision to fire him. Blash essentially advances two lines of reasoning to avoid this
problem. On the one hand, he argues that he did not do anything wrong and thus
did not deserve to be fired—which, of course, is not the point. This Court does not
Flowers, 803 F.3d at 1336 (quoting Alvarez v. Royal Atl. Developers, 610 F.3d
1253, 1266 (11th Cir.2010)). It was up to Sheriff Cape to decide whether Blash’s
Blash’s other argument is simply that Danny Brannen is racist and Cape was
racist for tolerating Brannen’s racism. Blash essentially contends that any decision
that Brannen was in any way connected to must have been based on race.
However, whether Brannen has said or done racist things (which he denies) is not
the issue here. The undisputed evidence shows that it was Sheriff Cape, not
Brannen, who fired Blash. There is no evidence that anyone other than Cape and
Major Freemont played any role in that decision (other than providing Freemont
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suggesting that he was targeted for his race. There is no evidence that Cape was
motivated by racial animus when he decided to fire Blash. For these reasons, the
attempt to resurrect his individual capacity claims against Brannen should also be
rejected by this Court because they were properly dismissed for failure to state a
claim.
decision to fire Blash, the judgment of the District Court should be affirmed.
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I. Introduction
Appellant’s Brief. Therein, Blash “conflates the standards that [this Court applies]
under McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973);] [Smith v.]
Lockheed-Martin, [644 F.3d 1321 (11th Cir. 2011);] and … Quigg v. Thomas Cty.
Sch. Dist., 814 F.3d 1227 (11th Cir. 2016).” Williams v. Housing Opportunities for
Persons with Exceptionalities, 777 Fed.Appx. 451, 454 n.4 (11th Cir. 2019).
require a showing that bias was the true reason for the adverse action.’ In contrast,
opening brief that the district court’s application of [McDonnell Douglas and]
Lockheed-Martin was error. He has therefore abandoned the argument that the
2
The District Court briefly considered and rejected the application of the mixed-
motive test to this case, even though Blash did not argue the case as one of mixed-
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Blash’s Points I and II argue that he has come forward with a “convincing
analysis to set forth in Lockheed–Martin. Also in Point I, Blash cites Quigg, but
never argues that this case is a mixed-motive case. Blash finally begins his
discussion of the McDonnell Douglas framework Point III—but begins with the
second step in the framework and bypassing his own prima facie case until Point
step in the framework—is primarily argued in his Point VI. This brief will first
address the McDonnell Douglas framework in its proper order, before addressing
[this Court] primarily appl[ies] the framework set out in McDonnell Douglas …,
and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 … (1981).”
Howard v. Hyundai Motor Manufacturing Alabama, 754 Fed. Appx. 798, 804 (11th
Cir.2018).
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Flowers, 803 F.3d at 1336 (quoting Burdine, 450 U.S. at 254). “If the plaintiff can
make this showing … the burden then shifts to the employer to produce ‘a
legitimate, nondiscriminatory reason’ for the action taken against the plaintiff.’” Id.
failed to present evidence that “he was replaced by someone outside of his
protected class or received less favorable treatment than a similarly situated person
outside of his protected class.” See Flowers, 803 F.3d at 1336. “[A] plaintiff
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demonstrate that she and her proffered comparators were ‘similarly situated in all
material respects.’” Lewis v. City of Union City, Georgia [“Lewis I”], 918 F.3d
basic conduct (or misconduct) as the plaintiff [among other similarities]. In short,
as its label indicates–‘all material respects’–a valid comparison will turn not on
formal labels, but rather on substantive likenesses. [A] plaintiff and her
citations omitted).
White and Jordan Peavy, who were accused of using excessive force when
was made regarding White and Peavey until after the Georgia Bureau of
Blash allegedly requested, but was denied, a GBI investigation before he was fired.
[Id. at 24.]
Blash concedes that his comparators were charged with different misconduct
than was his, but claims that their deeds were “more serious,” and yet they got
“better treatment.” Blash concludes that this better treatment could only be because
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of race. [Appellants’ Brief, pp. 50-51.] This Court rejected just such an argument
quibbling about whether [his comparators’] alleged violations were worse than his
best to deal with them are exactly the sort of judgments about which we defer to
employers. That [the comparators] were treated differently, then, matters not.”)
(footnote omitted).
Blash’s prima facie case fails because his comparators were treated
the act of ‘treating like cases differently.’” Lewis I, 918 F.3d at 1225 (quoting
N.L.R.B. v. Collier, 553 F.2d 425, 428 (5th Cir.1977)). No reasonable person could
look at the situation involving White and Peavey and say that it “cannot reasonably
White and Peavey were accused of violating a citizen’s civil rights. The GBI
routinely investigates claims of excessive force made against police officers. See
investigations of, e.g., officer involved shootings) (last visited August 24, 2020).
When a sheriff’s deputy is accused of excessive force, not only is there the
potential for significant public interest, but there is the potential for a serious
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conflict of interest. A sheriff must run for reelection and is potentially liable under
Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978). A sheriff whose deputy is
accused of violating the civil rights of a citizen has every reason to refer an
internal investigation. That does not mean that the GBI serves as the de facto
Blash was not accused of violating any person’s civil rights. He was accused
hire or fire his deputies. Prellitteri v. Prine, 776 F.3d 777, 780-81 (11th Cir. 2015).
He is not required to delegate that authority to the GBI. Moreover, Blash never
denied what he was accused of—warning Orta to stay away from Howard—and
still does not. [Doc. 64-4, pp.2-3; Doc. 72-1, pp.28:17 - 33:5; Doc. 70-15, ¶¶4-7.]
unclear how a GBI investigation could have changed the Cape’s decision. Cape
made an employment decision that was his, not the GBI’s, to make.
comparators were not “substantially similar in every material respect.” Blash has
failed to come forward with a valid comparator and thus has failed to establish a
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The articulated, legitimate basis for Blash’s dismissal was his decision to
warn Orta to stay away from Howard, which Cape determined to be improper
litigation, has never been in dispute, was admitted by Blash in his Amended
without merit.
In Point III of Appellant’s Brief, Blash argues that, because Cape died
before giving testimony in this case, there can be no admissible evidence of why he
fired Blash, and therefore, the District Court must have simply “assigned” an
articulated reason that was never actually articulated. Blash’s rather cynical
argument ignores both circumstantial and direct evidence of the articulated reason
belief,” he was “discharged … for allegedly telling a civilian that he should stay
away from a postal employee who was suspected of stealing pills ….” [Doc. 58,
3
The District Court never actually reached the question of whether Defendants had
come forward with evidence supporting a legitimate reason for Blash’s dismissal
during its McDonnell Douglas analysis, because it ruled that Blash did not satisfy
his prima facie case. [Doc. 101, pp. 25-26, 35.]
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¶22.] He further explains that the reason he was given for his termination was this
conversation with Orta about staying away from Howard. [Id., ¶23.] He goes on to
explain that he was arrested, incarcerated, and indicted for the same reason that he
[Id., ¶¶35-38.]
articulated basis for Blash’s dismissal. While Blash repeatedly alleges that the
reason given to him was “bogus,” those allegations go to pretext not articulation. A
party’s admissions in his pleadings are “binding and conclusive.” Best Canvas
Products & Supplies v. Ploof Truck Lines, 713 F.2d 618, 621 (11th Cir. 1983).
Moreover, Blash admitted in his affidavit that he actually engaged in the conduct
for which he was fired. [Doc. 70-15, ¶¶5-6.] Based on Blash’s own admissions, the
articulated reason for his dismissal was his conversation with Orta.
[Doc. 64-4, pp. 2-3.] Brannen thus swore that he personally witnessed Cape being
briefed by Major Freemont regarding the allegations against Blash by Deputy Jay
Williams, and he witnessed the meeting where Major Freemont and Sheriff Cape
Moreover, at his deposition, Brannen testified that Cape told him that Blash
was being fired for “interfering with a federal investigation.” [Doc. 72-1, p.27:7-
20.] This conversation occurred at the same time as the meeting of Major
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Cape, and Cape decided to fire Blash.4 [Id., pp. 28:17 – 30:19; see also id., pp.
30:20 –33:5 (discussing the subsequent meeting with Blash and Blash’s admission
Blash’s arguments below and the District Court’s ruling. Cape’s state of mind is
directly at issue here, specifically his (1) belief that Blash interfered with a federal
investigation and (2) his motive, intent, and plan for firing Blash. Cape’s statement
to Brannen that he intended to fire Blash for interfering with a federal investigation
is admissible under Fed. R. Evid. 803(3) (state of mind exception to hearsay rule).
The testimony is not being offered to prove that Blash did, in fact, interfere with a
federal investigation; that is not the issue here. The issue is whether Cape believed
that Blash interfered with a federal investigation, and whether that belief motivated
4
It is true that Brannen testified that he did not know “how it came about that”
Blash was fired, because he did not make the decision—Cape and Freemont did.
[Doc. 72-1, p.27:3-9.] But he did know and did testify as to what Cape told him
about why Blash was terminated. [Id., p.27:10-20.]
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suggests that he was fired for his interference with the postal investigation—and
• Blash learned in spring or summer of 2014 that postal worker Renee Howard
had been approaching Scott Orta about his pain medication. [Doc. 70-15,
¶4.]
• He later learned from McGriff that Howard had been arrested. [Id.]
• Around the end of November 2014, despite not being involved in the
investigation and not knowing whether Orta was a suspect, Blash took it
upon himself to warn Orta to stay away from Howard. [Id., ¶¶6-7.]
• McGriff affirmed that he, Williams, and USPS Investigator Arrington were
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• It was McGriff’s “understanding that once Howard was arrested that the
• However, after her arrest, Howard became a cooperating witness for the
• Arrington told Williams that Howard became worried when Orta told her
that Blash had warned him to stay away from her. [Id., ¶¶12-13.]
• Williams and Arrington then spoke to Orta, who confirmed Blash’s actions,
and Arrington told Williams “that either [Williams] would advise [his]
Cape that Blash “had provided information about the investigation to one of
• Cape then told Brannen that he was firing Blash because Blash had
• On December 1, 2014, Cape told Blash that he was being terminated for
interfering with a federal investigation. [Doc. 58, ¶23; Doc. 64-4, pp.2-3.]
• Blash was indicted by a grand jury for his conduct. [Doc. 58, ¶35-38; Doc.
11-1.]
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information to Major Freemont, who briefed Sheriff Cape. The testimony was
never offered to show that Arrington’s statements to Williams were true; it was
offered for its effect on the listener (Williams) and thus was not hearsay. Eaves v.
Work Force Central Florida, 623 Fed. Appx. 955, 960 (11th Cir. 2015). Williams
has personal knowledge of what he was told by Arrington and what he conveyed to
Major Freemont. Brannen, in turn, had personal knowledge of what Williams told
Freemont and what Freemont told Cape. [Doc. 64-4, pp. 2-3; Doc. 72-1, p. 27:7-
spoke to Orta about Howard, and Cape concluded that doing so was improper
interference with a federal investigation. Cape and Brannen met their burden to
C. Blash has not shown that the articulated basis for his dismissal was
pretext for discrimination [Appellant’s Brief, Point VI].
essentially argues that because he and his witnesses do not believe that he deserved
to be fired, the District Court was required to accept this as true and find an issue
misses the point. To show pretext, a “plaintiff must show both that the proffered
reason was false, and that discrimination was the true reason for the adverse
action.” Howard, 754 Fed. Appx. at 805; see also Crawford v. City of Fairburn,
482 F.3d 1305, 1309 (11th Cir.2007) (holding that pretext requires a showing of
both of discriminatory animus and that the given reason is false). Blash can show
neither.
Blash was told that he was being fired for warning Orta to stay away from
Howard. Blash admits that he warned Orta to stay away from Howard. The reason
given to him was not “false.” There is no evidence that Cape had any other
motivation for firing Blash. And even if—as Blash and his witnesses apparently
believe—his conduct did not rise to the level of interfering with an investigation—
of fact still does not exist as to whether Blash was discriminated against. “The fact
unlawful discriminatory animus.” Howard, 754 Fed. Appx. at 808. “Title VII
the business judgment of federal courts for any other nondiscriminatory reason.”
Flowers, 803 F.3d at 1330. Even if Blash “produced sufficient evidence that could
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lead a reasonable jury to infer that he was treated unfairly,” he “has failed to
produce any evidence suggesting that his treatment was on account of his race.” Id.
(footnote omitted).
The facts laid out in detail above (supra, pp. 19-20) show a course of events
through which a direct line can be drawn from Blash learning of the Orta-Howard
request in October or November 2014; to Blash warning Orta to stay away from
Howard in late November 2014; to Cape firing Blash on December 1, 2014. The
only evidence as to what motivated Cape to fire Blash is his belief that Blash had
to Freemont by Williams.
Blash argues that the investigation was over when he spoke to Orta and that
fails to explain why he found it necessary to warn Orta to stay away from her, if he
believed that the investigation to be over. But, even if true, Blash’s ignorance is
beside the point. There is no evidence that Cape knew Blash acted out of
ignorance, or that it would have made any difference to Cape one way or the
other. Cape could very well have concluded that Blash’s ignorance of the
investigation made his decision to get involved all the more improper, as he had no
way of knowing what butterfly effect his warning to Orta might have had.
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Regardless, the evidence shows that Cape decided to fire Blash based the
information provided to him, and he was not legally required to gather any
additional information. 5
[Doc. 101, pp. 33-34 n.12 (citations omitted) (citing Lewis I, 918 F.3d at 1229–
30).] Exactly. Neither Blash nor his witnesses give another specific instance in
which (1) a deputy warned a subject of an investigation, (2) of which the deputy
5
Former Deputy Anthony Taylor testified that he spoke with Sheriff Cape after
Cape had already decided to terminate Blash. According to Taylor, he told Cape
that Blash did nothing wrong. [Doc. 70-18, ¶¶ 24-25.] But Taylor was not part of
the investigation of Howard and Orta, and his affidavit contains no hint as to how
he would have personal knowledge that Blash did nothing wrong. He appears to
have simply formed an opinion based on what he heard about the situation (or what
Blash told him). Cape was not legally required to agree with Taylor’s opinion.
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was not a part, (3) to stay away from a suspect who had become a cooperating
witness. At minimum, Blash knew that Howard had approached Orta about his
pain medication; that those investigating Howard had Orta’s photograph among
their evidence; and that Howard had been arrested. Yet, Blash saw fit to warn Orta
to stay away from Howard, without even inquiring as to whether doing so would
This information was before Cape when he decided to fire Blash. Even if
appropriate (and there is no evidence that he did), there is no evidence that Cape
2. There is no evidence that Blash’s race was the true reason for his
termination.
It is not enough for Blash to show that the reason he was fired was “bogus”;
he must show that it was pretext for race discrimination. A “plaintiff must show
both that the proffered reason was false, and that discrimination was the true
reason for the adverse action.” Howard, 754 Fed. Appx. at 805. In the Flowers
case, a Black high school football coach was fired after being accused of recruiting
Flowers, 803 F.3d at 1337-38 (citations and a footnote omitted); see also Howard,
754 Fed. Appx. at 809 (“But even if Hyundai’s conclusions regarding Howard’s
conduct during the 2015 incident were wholly or partially mistaken, it cannot be
held liable for discriminatory conduct because Howard has also failed to point to
actions.”).
Likewise, even if this Court is convinced that Blash was innocent and was
railroaded by Williams, Freemont, Cape, and Brannen, it would not follow that he
was fired because of his race. There being no evidence of discriminatory intent,
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as follows:
Even if one assumes the truth of the two premises, multiple assumptions must be
made to make the conclusion logically follow. Rather than relying on assumptions,
Blash was required to come forward with evidence. Yet Blash offers no evidence
that Brannen terminated him, sought to have him terminated, or influenced Cape’s
decision to terminate him in any way. Blash presents no evidence that Brannen has
ever orchestrated or pushed for the termination of any African American deputy.
Blash offers no evidence that Cape was discriminatory in his hiring or firing
practices, or that he harbored racial animus towards Blash. In short, Blash offers no
Evidence that Brannen has said racist things is not the same thing as a mosaic of
particularly obvious cases and works to frame more clearly the specific issues to be
litigated. It does not, however, relieve Title VII plaintiffs of their burden to put
‘establishing the elements of the McDonnell Douglas framework is not, and never
was intended to be, the sine qua non for a plaintiff to survive a summary judgment
motion’ in Title VII cases. The critical decision that must be made is whether the
intent.’” Flowers, 803 F.3d at 1336 (quoting Lockheed-Martin, 644 F.3d at 1328).
“As [this Court has] ‘repeatedly and emphatically held,’ employers ‘may
terminate an employee for a good or bad reason without violating federal law.’
Title VII does not allow federal courts to second-guess nondiscriminatory business
judgments, nor does it replace employers’ notions about fair dealing in the
Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir.1999)) (citations
omitted). “Put frankly, employers are free to fire their employees for ‘a good
reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as
long as its action is not for a discriminatory reason.’” Id. (quoting Nix v. WLCY
among other things, (1) ‘suspicious timing, ambiguous statements ..., and other bits
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and pieces from which an inference of discriminatory intent might be drawn,’ (2)
systematically better treatment of similarly situated employees, and (3) that the
[Lewis II], 934 F.3d 1169, 1185 (11th Cir. 2019) (alteration in original).
As laid out in the above “pretext” discussion (supra, §II-C; see also supra,
§II-B-3), the timing of Blash’s dismissal is hardly suspicious; Blash was fired on
December 1, 2014, for an action that he took the last week of November, 2014.
When the actions were reported to Cape, his decision was immediate and final
statements suggesting other reasons for Blash’s termination; the only reason Cape
ever gave to anyone for firing Blash was for the Orta/Howard incident. As also
and certainly no evidence that they are systematically treated better. (See supra,
supra, §II-C.)
relate directly to the decision at issue. “A supervisor has acted with racial bias in
material fact did not concern racial bias in general, but bias in hiring and firing
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decisions and in the decision to fire the plaintiff in particular. See Herron-Williams
v. Alabama State University, 805 Fed. Appx. 622, 630 (11th Cir.2020) (citations
Blash sums up his “mosaic” on pages 38-39 of his Brief in twelve bullet
points, which can be divided into the following five categories. An examination of
Blash’s evidence shows that it falls far short of raising an issue of fact on
discrimination.
as Captain, wielded a good deal of influence over Sheriff Cape in the operation of
the Sheriff’s Office. [See Doc. 70-19, ¶¶5-7; Doc. 70-18, ¶16; Doc. 73-1, ¶¶11-12;
control over Cape was limited. Specifically, Cape suspended Brannen for four days
and sent him to anger management classes when he discovered that Brannen had
Doc. 72-1, pp. 15:15-16:15, 20:3-21:13; Doc. 70-15, ¶8.] Moreover, missing from
Blash’s evidence is any indication that Brannen ever pressured Cape not to hire or
Cape to fire Blash. The undisputed evidence is that the only connection between
Brannen and Blash’s firing was that Brannen was present when it happened. The
evidence shows that Jay Williams was alerted to Blash’s behavior by USPS
that Cape fired Blash based on these reports, which Blash did not deny. (See supra,
pp. 19-20, 23.) Blash presents no evidence that Brannen took any position one way
or the other about his termination, or that Cape asked for Brannen’s input. Blash’s
opinion that Brannen would normally be the one to recommend his dismissal does
not mean that Brannen did so on this occasion. The undisputed evidence is
otherwise.
evidence that Brannen has said highly offensive, racist things about African
6
One of Blash’s witnesses, Lucious Bray, also accused Brannen of being
physically abusive towards African Americans, but virtually all of his testimony
was inadmissible hearsay on its face. [Doc. 70-17, ¶ 7 (describing “complaints” he
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deposition), they are of limited probative value here and do not create an issue of
material fact.
could assist a jury in disbelieving the employer’s proffered reasons for the adverse
decisionmakers unrelated to the decisional process’ at issue will not satisfy the
employee’s burden.” Steger v. General Electric, 318 F.3d 1066, 1079 (11th Cir.
2003) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989)
“to the decisional process.” That is, none were directed at Blash; none had any
was opposed to hiring Black deputies or sought excuses to fire Black deputies.
And, as shown above, Brannen was not the decision maker; Cape had the authority
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to fire Blash and exercised that authority. Brannen’s alleged racist comments
455 (“[A] reasonable jury could not find that she fired him because of his race
based only on that [racist] statement because its content bears no relation to the
termination decision.”).
Blash continues creating his mosaic by referencing the same evidence that
he used to attempt to show pretext. That is, the testimony of McGriff and others
that he was guilty of nothing and did not deserve to the fired. The pretext
there, Blash has admitted the underlying conduct, and the evidence shows that
investigation. There is no evidence that this decision was influenced to any degree
by Blash’s race.
8
Blash cites several cases for the proposition that racist comments by
decisionmakers on other occasions are sometimes relevant evidence at trial or
summary judgment [Appellant’s Brief, pp. 36-37], but that is not the issue here.
The issue is whether Brannen’s alleged racist statements and actions create an
issue of material fact as to whether Blash was discriminated against. They do not.
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Blash has presented evidence that he and a White deputy were punished
differently for misusing official vehicles. Blash presented evidence that a Black
deputy was not allowed to take his vehicle home until a White deputy was allowed
to take his home. Yet, Blash made no EEOC complaint about discriminatory rules
for vehicle use at the Sheriff’s office, and he is not seeking damages related to such
Instead, Blash asks this Court to infer from two instances of alleged
disparate treatment in the use of police vehicles that he was discriminated when he
basis for the Court to take such a leap. Blash does not contend that any Black
deputy was fired for their use of their vehicle and sets forth no evidence from
which the Court can determine that race was the only factor in the alleged disparate
treatment of the vehicle users. This evidence in no way creates an issue of fact as
Blash’s allegation that his misconduct should have been investigated by the
GBI before he was fired, because two White deputies were investigated by the GBI
when accused of using excessive force, is groundless and does not show
discrimination. As discussed above (supra, §II-A), Blash has merely shown that
F.3d at 1225.
inference that Cape himself had a racist motivation by virtue of the fact that he
repeatedly witnessed, was aware of, was complained to about Brannen’s racism
and did nothing about it.” [Appellant’s Brief, p.39.] This assertion is puzzling.
Elsewhere in Blash’s brief, he states: “Brannen was suspended for four days for
hostile behavior towards Anthony Taylor, a former Pulaski County Deputy, who is
Brannen for hostile behavior towards a Black deputy, it cannot also be true that
accountable for some of his offensive behavior supports the conclusion that Cape
fired Blash because of Blash’s race. Again, Blash relies on inuendo, assumptions,
and unwarranted inferences rather than evidence. Blash fails to come forward with
any actual evidence of race-based hiring and firing decisions under Cape. Blash
fails to come forward with any evidence that even suggests, however remotely, that
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Cape fired Blash because of his race.9 The evidence leads to only one conclusion:
Cape fired Blash because Cape concluded that Blash’s conversation with Orta
liability fails for one significant reason: Blash contends that Cape himself was
racist. (See supra § III-B.) A cat’s paw theory of liability seeks to hold an
decisionmaker’s. See Staub v. Proctor Hosp., 562 U.S. 411, 415 n.1 (2011);
Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir.1998);
Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir.1999); Crawford v.
Carroll, 529 F.3d 961, 979 n.21 (11th Cir.2008). If, as Blash contends, Cape
harbored his own discriminatory animus, Brannen’s influence over Cape’s decision
own racism, however, he still failed to present evidence to support cat’s paw
liability.
9
Blash cites Smith v. City of New Smyrna Beach, 588 Fed. App’x 965 (11th Cir.
2014), but that case involved evidence of unrelenting hostility and constant
discrimination directly toward plaintiff and all other female firefighters by several
decisionmakers, enough to show that they disapproved of the very notion that a
woman could be a firefighter (in addition to evidence of pretext as to the reason the
plaintiff was fired). Id. at 976-77. No such evidence exists here.
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Cape and his participation in ‘discuss[ing] Plaintiff’s fate’ was all that was
necessary to warrant denial of summary judgment under Title VII and Section
1981 against Brannen in his official capacity as Sheriff.” [Appellant’s Brief, pp.47-
48 (second alteration in original).] As the District Court noted in its order granting
of liability in this case completely miss the point. [Doc. 101, pp.40-41.] While an
that influenced the ultimate adverse employment decision in certain cases, see
Staub, 526 U.S. 411, that is not what happened here. In short, there is no evidence
that Brannen influenced Cape’s decision to terminate Blash in any way, and
This Court has long recognized the cat’s paw theory, wherein an employer
(determining cat’s paw theory did not apply where supervisor did not recommend
186 F.3d at 1332 (reversing judgment for plaintiff holding plaintiff did not present
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F.3d at 979 n.21 (finding plaintiff failed to show causal connection between
The Supreme Court’s decision in Staub did not change this Court’s already
decisionmaker does not, in and of itself, preclude employer liability. Staub, 562
U.S. at 420-21. Analyzing the cat’s paw theory in the context of a claim under the
Supreme Court held that an employer could only be liable “if a supervisor
cause of the ultimate employment action.” Id. at 422 (emphasis added). The Court
further concluded that an independent investigation does not relieve the employer
of fault where the investigation also takes into consideration information provided
by the biased supervisor “without determining that the adverse action was, apart
“if the employer’s investigation results in an adverse action for reasons unrelated
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to the supervisor’s original biased action, then the employer will not be liable.” 10
Thus, to proceed under a cat's paw theory, Blash must make a minimum
Stimpson, 186 F.3d at 1331. Specifically, he must show that (1) Brannen
employment action, and (2) that act was a proximate cause of the ultimate
employment action. Here, Blash failed to so. Blash did not present evidence that
Brannen made any recommendation as to Blash’s termination, let alone that such
10
Blash argues, in passing, that “Staub made clear that even if there had been an
independent investigation (which Cape denied Blash) that would not necessarily
provide a shield against cat’s paw liability.” [Appellant’s Brief, p. 48 (emphasis in
original).] Although he fails to further elaborate on this argument in Point IV, he
makes a big deal about the fact that Cape denied him an independent investigation
by the GBI elsewhere in his brief. [See, e.g., Appellant’s Brief, pp. 40, 53, 62, 69;
see also supra § II-A.] Contrary to Blash’s statement, however, Staub in fact
makes clear that it is the employer’s independent investigation that is of import.
Cape conducted an investigation: he spoke with Major Freemont about what
Deputy Williams’ report and then spoke to Blash, who admitted to the underlying
conduct. Nothing in Staub and its progeny support, or even suggest, that Blash is
entitled to an independent, outside third-party investigation into his misconduct
prior to the decision to terminate him. See, e.g., Stevens v. City of Forest Park, 635
Fed. Appx. 690, 700-01 (11th Cir. 2015) (unpublished) (finding that cat’s paw
liability did not apply where ultimate decisionmaker conducted independent
investigation and reached his own conclusions).
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(Appellant’s “Point VI”) arguments, Blash’s attempt to establish cat’s paw liability
rests on Brannen’s alleged racism in general and his alleged influence over Sheriff
Cape. As previously discussed, however, the evidence simply does not support this
theory. See supra §§II-C, III-A. Notably, Blash does not cite to any “evidence of
Brannen’s racism” in his cat’s paw analysis. [See Appellant’s Brief, Point IV,
pp.45-51.] Instead, the only evidence he relies upon to make his argument of cat’s
paw liability focuses on Brannen’s alleged influence over Cape and his
participation in the meeting “to discuss [Blash’s] fate.” [Appellant’s Brief, p.47.]
Blash. (See supra § II-C; III-A (pp.30-31).) Brannen’s control over Cape was
limited, as shown by the evidence that Cape suspended Brannen for four days and
sent him to anger management classes when he discovered that Brannen had
Doc. 72-1, pp. 15:15-16:15, 20:3-21:13; Doc. 70-15, ¶8.] Moreover, Blash’s
opinion that Brannen would normally be the one to recommend his dismissal does
According to Blash, “[t]he District Court erred when it failed to draw the
termination” despite “Appellees’ own admission that Brannen met with Cape ‘to
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discuss Plaintiff’s fate.’” Id. (emphasis in original). In his view, the District
Court’s finding that “Cape never discussed his decision to fire Blash with
admission. 11 But this finding does not conflict with the admission that Brannen was
in the meeting where Blash’s fate was discussed. It is undisputed that Sheriff Cape,
Major Freemont, and then-Captain Brannen were at the meeting, where Major
Freemont reported Blash’s misconduct to Cape. [Doc. 64-4, pp.2-3; Doc. 70-1,
¶26; Doc. 72-1, p.29:10-30:1.] Blash completely ignores Brannen’s testimony that
he did not speak during this meeting; it was Major Freemont and Sheriff Cape who
Blash does not dispute Brannen’s testimony and presents no evidence that
Brannen took any position one way or the other about his termination, or that Cape
asked for Brannen’s input. Instead, he simply argues that the District Court
Brief, p.47.] In other words, Blash would have this Court infer that Brannen’s mere
reasonable inference—it’s a major leap beyond what the evidence will support.
11
The District Court was not required to rely solely on the facts cited in the parties’
statements of material facts; the Court “may consider other materials in the
record.” FRCP 56(c)(3).
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The undisputed evidence shows that it was Major Freemont (informed by Deputy
Williams), not Brannen, who assisted Cape in making the decision to fire Blash.
Point I, for the proposition that a supervisor’s statements are generally admissible
pp.49-51.] None of the cases Blash cites in support, however, analyzed such
In the cases finding that a cat’s paw theory applied to hold the employer
liable, there was evidence of the supervisors’ persistent hostility and constant
Staub, 566 U.S. at 414 (detailing specific instances of supervisors’ bias against
12
As previously stated (see supra p. 33, n.8), Blash’s cited cases stand for the
proposition that racist comments on other occasions are sometimes relevant
evidence at trial, but that is not the issue here. The issue is whether Brannen’s
alleged racist statements and actions create an issue of material fact as to whether
Blash was discriminated against. They do not.
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Fed. App’x. 823, 828 (11th Cir. 2012) (unpublished) (holding the plaintiff
demonstrated potential liability under a “cat's paw” theory when the offending
supervisor made statements that she would engineer the plaintiff's termination and
Laboratories, LLC, 797 F.3d 486, 490 (7th Cir. 2015) (concluding that
plaintiff’s work more difficult could lead jury to believe that tampering was
There is no such evidence here. Even contributing the alleged racism Blash
relies upon in Point I to support his argument in Point IV, none of Brannen’s
alleged racial comments were related to Blash or the decision to terminate him.
(See supra § III-A, pp. 31-33.) Likewise, none of the alleged comments even
suggested that Brannen was opposed to hiring Black deputies or sought excuses to
fire Black deputies. Simply put, there is nothing in the record to support the
inference that Brannen’s alleged general racism had any connection to, or in any
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On the contrary, the undisputed evidence is that the only connection between
Brannen and Blash’s firing was that Brannen was present when it happened.
Brannen did not speak at the meeting where Major Freemont briefed Cape as to
Blash’s interference with the Postal Service Investigation, and Cape never
discussed the decision to terminate Blash with Brannen. Without any further
evidence that Brannen in some way influenced Cape’s decision to terminate Blash,
and that this influence was motivated by his racial animus, a cat’s paw theory of
liability cannot stand and Cape’s decision to terminate Blash was “entirely
justified” by the undisputed evidence in the record. Staub, 562 U.S. at 421-22.
Finally, Blash contends that the District Court’s failure to analyze a cat’s
judgment, Blash asked the District Court to revisit its prior rejection of a cat’s paw
theory of liability, setting forth substantially the same argument set out in Point IV
of Appellant’s Brief. [Doc. 70, pp. 20-24.] In granting summary judgment for
13
The District Court’s reasoning in dismissing Blash’s race discrimination claim
against Brannen in his individual capacity has no bearing on its decision on the
claim against Brannen in his official capacity, particularly where Blash changed
his argument as to Brannen’s involvement in the decision-making process. For the
discussion of cat’s paw liability in the context of the District Court’s dismissal of
Blash’s claims against Brannen in his individual capacity, see discussion infra §
VI.
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defendants, the District Court declined to revisit this theory, and correctly
determined that “any further attempt to resurrect a cat’s paw theory via numerous
In Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020), the Supreme
Court ruled that Title VII’s bar on sex discrimination encompasses discrimination
Bostock controls this case, suggesting that Bostock (without saying so) overruled
decades of Title VII jurisprudence by doing away with the distinction between
Douglas, or any other single-motive discrimination case, surely it would have said
so. Instead, the Court simply observed: “An employer violates Title VII when it
frameworks. See Lockheed–Martin, 644 F.3d at 1328 (“[T]he plaintiff will always
triable issue concerning the employer’s discriminatory intent.”); Quigg, 814 F.3d at
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1239 (“[T]he court must determine whether the ‘plaintiff has presented sufficient
was a motivating factor for [an] adverse employment decision.’”) (some alterations
in original).
race played any role in Cape’s decision to fire him. Blash warned an acquaintance
(Orta) to stay away from a cooperating witness (Howard), and Cape concluded—
Under the evidence before the Court, Blash’s race had nothing to do with it.
VI. The Court properly dismissed Blash’s individual capacity claim against
Sheriff Brannen [Appellant’s Brief, Point VIII].
individual capacity was properly dismissed by the District Court because the
Complaint failed to allege sufficient facts to infer that Brannen insisted that Sheriff
Cape terminate Blash for a discriminatory reason, or that an unbiased Cape merely
under §1983 when a plaintiff establishes a causal connection between the alleged
unlawful conduct and the alleged harm. Dixon v. Burke Cnty, Ga., 303 F.3d 1271,
1275 (11th Cir. 2002). “A causal connection may be established by proving that
the official was personally involved in the acts that resulted in the constitutional
deprivation.” Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986).
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Blash contends that the allegations in his complaint are sufficient to impose
individual liability for race discrimination against Brannen based on four alleged
statements showing his racial animus, generally and specifically against Blash, and
that Brannen insisted Sheriff Cape terminate Blash. [Appellant’s Brief, p.65.]
Thus, according to Blash, “[t]he District Court committed clear error by refusing to
draw the reasonable inference from the Complaint that Brannen influenced Cape’s
Blash contends that a cat’s paw theory of liability can be used to impose
decisionmaker) under §1983 following the Supreme Court’s decision in Staub, 526
U.S. 411. [See Appellant’s Brief, pp.66-67.] Relying on Staub (without citation),
Blash argues that the “causal link [between the biased supervisor and the ultimate
decision] is established upon evidence that the supervisor merely influenced the
investigation, which in any event Cape did not do here.” 14 [Id. at 65-66 (emphasis
in original).]
14
Blash’s assessment of Crawford v. Carroll, 529 F.3d 961, 979 n.21 (11th Cir.
2008) is incorrect and irrelevant to his individual liability claim against Brannen.
See [Appellant’s Brief, p. 65]. In Crawford, the Eleventh Circuit discussed the
cat’s paw analysis to consider the decisionmaker’s (Johnston) liability for allegedly
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liability under § 1983 fails for several reasons. First, Blash has provided no legal
analysis as to how a cat’s paw theory applies to the facts of this case. Instead, he
simply cites to a string of cases and asserts that the allegations of the Complaint are
therefore adequate under such case law, leaving the Court and appellees to put the
cases and the various courts’ legal analyses, however, reveals that each of these
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Court correctly determined that Blash pled facts which undercut a cat’s paw
theory. [Doc. 37, pp.13-14.] According to the Complaint, Brannen insisted that
Sheriff Cape terminate Blash. [Doc. 1, ¶29.] Instead, Sheriff Cape offered Blash
the opportunity to resign and, when Blash refused, Cape asserted his autonomy to
terminate Blash. [Id. at ¶¶30-31.] Thus, the District Court found that Sheriff Cape
v. City of Forest Park, 635 Fed. Appx. 690, 701 n.12 (11th Cir. 2015) (“Also,
Matson’s initial recommendation was to fire Stevens, which Chief Hobbs rejected.
This further suggests that Hobbs’s thinking was independent from that of
argument was not raised below in the context of Brannen’s motion to dismiss the
Vrain Sch. Dist. RE-IJ, 785 F.2d 862 (10th Cir. 1986) (reversing directed verdict
for defendants on issue of whether plaintiff’s union activities were substantial
motivating factor in not renewing her teaching contract); Professional Ass’n of
Coll. Educators v. El Paso County Cmty. Coll. Dist., 730 F.2d 258 (5th Cir. 1984)
(affirming jury verdict for plaintiff discharged in retaliation for protected activity
in violation of First Amendment).
16
Blash raised this argument in his opposition to summary judgment and his
untimely motion for reconsideration of the order of dismissal. As discussed above
(supra §IV), the District Court was not required to revisit its dismissal of Blash’s
individual capacity claims against Brannen in deciding summary judgment on his
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Even if the District Court’s factual assessment was wrong, however, the
result would be the same. The fatal blow to Blash’s claim comes from his failure to
sufficiently plead facts to create a reasonable inference that, even if Brannen did
insist Cape terminate Blash, such insistence was motivated by Brannen’s alleged
racial animus. Specifically, the allegations asserted by Blash do not rise above the
animus, and certainly do not support such inference. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). As established in the cat’s
paw cases both before and after Staub, liability rests on the biased motivation of
the supervisor to take some action to influence a neutral decisionmaker, with the
intent to bring about the adverse employment action. See generally Staub, 526
U.S. at 419; Llampallas, 163 F.3d at 1249; Stimpson, 186 F.3d at 1332; Crawford,
529 F.3d at n.21. Thus, for Blash’s claim to proceed, his factual allegations must
and (3) that his biased recommendation was the proximate cause of Blash’s
termination.
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Blash did not alleged these facts. The Complaint alleges only one
termination), three other statements allegedly made by Brannen that were wholly
unrelated to Blash, and that Brannen insisted that Sheriff Cape terminate Blash.17
The Complaint also alleges that Sheriff Cape himself was motivated by his own
not adequately plead that Brannen’s insistence was motivated by racial animus. See
17
Notably, in analyzing Blash’s hostile work environment claim, the District Court
determined that “two of these statements cannot reasonably be construed or
interpreted as racial. First, calling someone a ‘motherfucker’ does not, in and of
itself, objectively indicate racial animus. Second, any statement alleging that a
sheriff promotes ‘one black and one white’ is not rooted in racial animus.” [Doc.
37, p.19 n.9.] The District Court also pointed out that these allegations “clearly
indicate that Plaintiff did not hear the statements himself. When describing the
Brannen statements, Plaintiff includes the limiting phrase ‘upon information and
belief’ in each relevant paragraph. [Doc. 1, ¶¶16-20]. The Court can only
reasonably infer that the Plaintiff did not hear these statements directly or else the
Plaintiff would not have chosen such qualifying language.” [Doc. 37, p.19.] It is
also notable that the one allegation related to Blash in the Amended Complaint was
not supported by evidence at the summary judgment stage.
18
This is further supported by the fact that the District Court denied Cape’s motion
to dismiss Blash’s race discrimination claim. [Doc. 37, p.25.]
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Staub, 526 U.S. at 419. Instead, Blash’s complaint leaves open to speculation the
cause for Brannen’s alleged recommendation that Sheriff Cape terminate Blash,
and the cause that Blash asks the Court to infer (i.e., Brannen’s alleged racial
animus) is not plausible in light of the “obvious alternative explanation” that Cape
Highway Transp., 780 F.3d 582, 588 (4th Cir. 2015) (citing Iqbal, 556 U.S. at 682)
(holding that plaintiff failed to plead sufficient facts to support a claim that
female).
without more, do not support Blash’s race discrimination claim against Brannen in
his individual capacity. Blash did not adequately allege that Brannen was
such suggestion was blindly followed by an unbiased Sheriff Cape. In other words,
do with Blash, two of which were not even racial, and none of which Blash heard
alleged racial animus and Blash’s termination. See Dixon, 303 F.3d at 1275; Zatler,
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for failure to state a claim because Blash failed to adequately plead facts to support
VII. The Court properly ruled that the claims against former-Sheriff Cape
are barred by qualified immunity [Appellant’s Brief, Point IX].
officials performing discretionary functions from the burdens of civil trials and
from liability, … [i]n all but exceptional cases.’ It is only ‘when an official’s
reasonable person would have known”’ that ‘the official is not protected by
qualified immunity.’” Rioux v. City of Atlanta, 520 F.3d 1269, 1282 (11th Cir.
whether ‘it would be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.’ Thus, ‘[i]f objective observers cannot predict—at the
time the official acts—whether the act was lawful or not, and the answer must
await full adjudication in a district court years in the future, the official deserves
immunity from liability for civil damages.’” Id. (quoting Foy v. Holston, 94 F.3d
For the reasons discussed above, Blash has not shown that he was the victim
defense of qualified immunity, he would have had to additionally show that “the
Protection] right.” Id. at 1283 (quoting Johnson v. City of Fort Lauderdale, 126
F.3d 1372, 1378 (11th Cir. 1997)) (internal quotation marks omitted) (second
qualified immunity analysis that a reasonable [sheriff] would know that [firing a
law.” Id.
belongs and still act lawfully ....’ Thus, ‘state officials act lawfully despite having
discriminatory intent, where the record shows they would have acted as they, in
fact, did act even if they had lacked discriminatory intent.’” Id. (quoting Foy, 94
F.3d at 1534) (citations omitted). Thus, to avoid summary judgment, Blash was
required to show that a reasonable jury could find that no reasonable sheriff would
have fired Blash under these circumstances. Id. at 1284. Blash did not and cannot
make that showing. As demonstrated above, Cape was informed that Blash had
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citizens generally, it does not mean that it was unreasonable for Sheriff Cape to
find that Blash was inexcusably wrong for warning Orta under these
circumstances. Even if an investigation would have shown that Blash acted out of
ignorance, rather than malice, it was not unreasonable for Sheriff Cape to terminate
him.
CONCLUSION
For all of the above reasons, the judgment of the District Court should be
affirmed.
Respectfully submitted,
/s/Derrick L. Bingham
DERRICK L. BINGHAM, ESQ.
Georgia Bar No. 141217
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CERTIFICATE OF COMPLIANCE
The undersigned counsel certifies that this Brief complies with the typeface
font; and
/s/Derrick L. Bingham
DERRICK L. BINGHAM, ESQ.
Georgia Bar No. 141217
C-1
USCA11 Case: 20-10337 Date Filed: 08/26/2020 Page: 68 of 68
CERTIFICATE OF SERVICE
I hereby certify that I have this day filed a true and correct copy of the
within and foregoing Brief of Appellee using the CM/ECF system which will
record:
/s/Derrick L. Bingham
DERRICK L. BINGHAM, ESQ.
Georgia Bar No. 141217
C-2