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USCA11 Case: 20-10337 Date Filed: 08/26/2020 Page: 1 of 68

IN THE UNITED STATES COURT OF APPEALS


FOR THE ELEVENTH CIRCUIT
______________________________________________________________

Appeal No. 20-10337-D


_____________________________________________________________

JOHNNY BLASH,

Appellant,

v.

WILLIAM B. CAPE and DANNY BRANNEN,

Appellees.
__________________________________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE


MIDDLE DISTRICT OF GEORGIA
CIVIL ACTION NO.: 5:17-cv-00380-TES
__________________________________________________________________

BRIEF OF APPELLEES
__________________________________________________________________

Derrick L. Bingham, Esq., Georgia Bar No. 141217

Owen Gleaton Egan Jones & Sweeney, LLP


303 Peachtree Street, N.E.
Suite 2850
Atlanta, Georgia 30308
(404) 688-2600

Attorneys for Appellees


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CERTIFICATE OF INTERESTED PERSONS


AND CORPORATE DISCLOSURE STATEMENT

Pursuant to FRAP 26.1 and 11th Cir. R. 26.1-1, 26.1-2, and 26.1-3,

Defendants-Appellees, by and through the undersigned counsel, hereby certify

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,

partnerships, or corporations that have an interest in the outcome of the particular

case or appeal:

1. Association County Commissioners of Georgia

2. Bingham, Derrick Lee

3. Brannen, Danny

4. Cape, William B. (and his Estate)

5. Cronin, Donald A.

6. Marx & Marx, L.L.C.

7. Marx, Jean Simonoff

8. Marx, Robert N.

9. O’Quinn & Cronin, LLC

10.Owen, Gleaton, Egan, Jones & Sweeney, LLP

11.Pulaski County

12.Pulaski County, Georgia, Sheriff’s Office

13.Self, Hon. Tilman E.


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The undersigned further certifies that, to the best of their knowledge,

information, and belief, no publicly traded corporation has an interest in the

outcome of this case or appeal.

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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE

DISCLOSURE STATEMENT…………………… ........................ ……………….ii

TABLE OF CONTENTS……………………………………… .. ………………..iv

TABLE OF CITATIONS AND AUTHORITIES………………… .. ……………vii

STATEMENT REGARDING ORAL ARGUMENT…………… .. ……………...xi

STATEMENT OF ISSUES…………………………… .. …………………………1

STATEMENT OF CASE………………………………………………….……….2

I. Statement of Facts……………………………………… ......................…2

II. Standards of Review ……………………………………… .................…5

SUMMARY OF ARGUMENT…………… ......................................……………...6

ARGUMENT AND CITATION OF AUTHORITIES………………………….....9

I. Introduction ................................................................................................9

II. Blash’s evidence fails under the McDonell Douglas analysis. ................ 10

A. Blash failed to produce sufficient evidence to establish a prima facie

case of discrimination [Appellant’s Brief, Point V] ...........................11

B. Defendants met their burden to articulate the legitimate basis for

Blash’s dismissal [Appellant’s Brief, Point III] ..................................15

1. Blash admitted the articulated basis for his dismissal. .................. 15

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2. There is direct evidence supporting the articulated basis for Blash’s

dismissal .........................................................................................16

3. The timing of and full circumstances surrounding Blash’s firing

supports the articulated basis for his dismissal ..............................19

C. Blash has not shown that the articulated basis for his dismissal was

pretext for discrimination [Appellant’s Brief, Point VI].....................21

1. There is no evidence that the articulated reason for Blash’s firing

was false .........................................................................................22

2. There is no evidence that Blash’s race was the true reason for his

termination .....................................................................................25

III. Blash failed to come forward with any evidence—much less a

“convincing mosaic of circumstantial evidence”—that he was

discriminated against ................................................................................27

A. The allegations of racism against Sheriff Brannen do not create an

issue of fact as to whether Sheriff Cape fired Blash because of his race

[Appellant’s Brief, Point I]…………………………………………27

B. Blash’s allegations that Cape was racist do not show discrimination in

Blash’s firing [Appellant’s Brief, Point II]. ........................................35

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IV. Blash failed to present evidence sufficient to establish a “cat’s paw”

theory of liability ......................................................................................36

V. The Supreme Court’s decision in Bostock v. Clayton County, Georgia,

does not change the outcome of this case

[Appellant’s Brief, Point VII]...................................................................45

VI. The Court properly dismissed Blash’s individual capacity claim against

Sheriff Brannen [Appellant’s Brief, Point VIII] ......................................46

VII. The Court properly ruled that the claims against former-Sheriff Cape are

barred by qualified immunity

[Appellant’s Brief, Point IX] ....................................................................53

CONCLUSION ........................................................................................................55

CERTIFICATE OF COMPLIANCE .....................................................................C-1

CERTIFICATE OF SERVICE .............................................................................C-2

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TABLE OF AUTHORITIES

United States Supreme Court:

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ……………………………………….50, 52

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ………………...………………50

McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) ………………………………………………..1, 9, 10, 11, 27, 28, 45, 15 n.3

Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978) ………………………..…14

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ……………………...………32

Staub v. Proctor Hosp., 562 U.S. 411

(2011) ……………………………………….36, 37, 38, 39 n.10, 43, 44, 47, 50, 52

Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981) …..…….10, 11

Eleventh Circuit Court of Appeals:

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

Flowers v. Troup County, Ga., School District, 803 F.3d 1327

(11th Cir. 2015) ………………………………………….6, 7, 11, 13, 22, 25, 26, 28

Foy v. Holston, 94 F.3d 1528 (11th Cir.1996) ………………………………53, 54

Herron-Williams v. Alabama State University, 805 Fed. Appx. 622, 630

(11th Cir.2020) ……………………………………………………………………29

Howard v. Hyundai Motor Manufacturing Alabama, 754 Fed. Appx. 798, 804

(11th Cir.2018)………………………………………………………...10, 22, 25, 26

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

(11th Cir. 2012) ………………………………………………………………….43

Lewis v. City of Union City, Georgia [“Lewis I”], 918 F.3d 1213 (11th Cir. 2019)

(en banc) ……………………………………………………………...12, 13, 24, 34

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

McMillian v. Johnson, 88 F.3d 1554 (11th Cir.1996) ……………………………53

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

Smith v. Lockheed–Martin Corp., 644 F.3d 1321

(11th Cir.2011) ……………………………………………...6, 9, 10, 28, 29, 30, 46

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

Watkins v. Southeastern Newspapers, Inc., 163 Fed. Appx. 823, 825

(11th Cir. 2006)…...……………………………………………………………..….5

Williams v. Housing Opportunities for Persons with Exceptionalities, 777

Fed.Appx. 451 (11th Cir. 2019) ………………………………………………9, 33

Zatler v. Wainwright, 802 F.2d 397 (11th Cir. 1986) ……………………….46, 52

Other Circuit Court of Appeals:

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

McCleary-Evans v. Md. Dept. of Highway Transp., 780 F.3d 582, 588

(4th Cir. 2015) ……………………………………………………………………52

Miller v. Polaris Laboratories, LLC, 797 F.3d 486, 490 (7th Cir. 2015) ………...43

N.L.R.B. v. Collier, 553 F.2d 425 (5th Cir.1977) …. …………………………….13

Professional Ass’n of Coll. Educators v. El Paso County Cmty. Coll. Dist., 730

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F.2d 258 (5th Cir. 1984) …. ………………………………………………..49 n.15

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

Tejada-Batista v. Morales, 424 F.3d 97 (1st Cir. 2005) ……………………48 n.15

Statutes:

Fed. R. Evid. 803(3) …18

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STATEMENT REGARDING ORAL ARGUMENT

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

straightforward application of well-established principles of law to the facts of the

underlying case. Thus, all issues can be adequately addressed in this Court through

briefing.

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STATEMENT OF ISSUES

1. Whether Blash established a prima facie case of discrimination under

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);

2. Whether Cape and Brannen, in his official capacity, articulated a legitimate

basis for Blash’s dismissal;

3. Whether Blash showed that the basis articulated by Cape and Brannen, in his

official capacity, was pretext;

4. Whether Blash has presented a mosaic of circumstantial evidence showing

that he was fired because of his race;

5. Whether Blash has established “Cat’s Paw” liability against Brannen;

6. Whether Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020),

changed the legal standard applicable to this case;

7. Whether Blash’s claims against Brannen in his individual capacity were

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

I. Statement of the Facts

Plaintiff/Appellant Johnny Blash, who is African American, was terminated

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.]

According to some witnesses, Cape generally either excused or denied this

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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was accused of mistreating a Black deputy. [Doc. 72-1, pp.15:15-16:15, 20:3-

21:13; Doc. 70-15, ¶8.]

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

deputies, including himself. [Doc. 70-18, ¶¶13-15, 18-21.] Blash presented no

evidence of discriminatory hiring or firing practices, and no evidence that Brannen

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

considered race in his decision to fire Blash. [Id.]

The events leading up to Blash’s termination were as follows. In the spring

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.]

Video surveillance revealed Howard receiving what appeared to be a pill

bottle from a male civilian. [Doc. 70-16, ¶¶13-14.] In October or November of

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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

became a cooperating witness for the USPS. [Doc. 64-3, ¶11.]

Around the end of November 2014—despite not being involved in the

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]

superiors of Blash’s conduct or Arrington would handle it.’” [Id., ¶¶15-19.]

Williams reported the above events to his supervisor, Major Juston

Freemont. [Id., ¶¶20-23.] Freemont briefed Sheriff Cape, in then-Captain (now

Sheriff) Danny Brannen’s presence, informing Cape that Blash “had provided

information about the investigation to one of the subjects under investigation.”

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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

interfered with a federal investigation. [Doc. 72-1, pp. 27:7-20, 30:14-19.] On

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.]

II. Standards of Review

Appellees agree with the standards of review as stated by Appellant, except

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

(11th Cir. 2006).

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SUMMARY OF ARGUMENT

“The critical decision that [controls this case] is whether [Plaintiff/Appellant

Blash] has ‘create[d] a triable issue concerning [former Sheriff Cape’s]

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

in this case is not whether Defendant Brannen is a racist or wielded extraordinary

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

terminate Blash.” [Id. at 34.]

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

investigators to be watching, to “stay away from” Renee Howard, the postal

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

act as a “‘super-personnel department’ assessing the prudence of routine

employment decisions, ‘no matter how medieval,’ ‘high-handed,’ or ‘mistaken.’”

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

admitted conduct warranted termination—not Blash’s witnesses, not then-Captain

(now Sheriff) Danny Brannen, and not Blash himself.

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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with information regarding Blash’s actions, as did Deputy Jay Williams).

Blash’s alleged comparators are incomparable; his evidence of pretext is

nonexistent; and he fails to come forward with any circumstantial evidence

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

District Court properly granted summary judgment to Sheriff Brannen in his

official capacity and former-Sheriff Cape in his individual capacity. Blash’s

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.

Because there is no evidence that race was a motivating factor in Cape’s

decision to fire Blash, the judgment of the District Court should be affirmed.

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ARGUMENT AND CITATION OF AUTHORITIES

I. Introduction

This brief intentionally does not follow the argument sequence of

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).

“McDonnell Douglas and Lockheed-Martin set forth alternative frameworks for

analyzing ‘single-motive claims[,] ... also known as “pretext” claims[, which]

require a showing that bias was the true reason for the adverse action.’ In contrast,

[this Court applies] the framework described in Quigg to ‘mixed-motive’

employment discrimination claims….” Id. (citations omitted; first two alterations

in original). “The district court [primarily] analyzed [Blash’s] claim under

[McDonnell Douglas and] Lockheed-Martin, and [Blash] raised no argument in his

opening brief that the district court’s application of [McDonnell Douglas and]

Lockheed-Martin was error. He has therefore abandoned the argument that the

mixed-motive ‘motivating factor’ standard should apply instead.” 2 Id.

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

mosaic of circumstantial evidence” of discrimination, which is the alternative

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

V. (Point IV digresses from McDonnell Douglas framework.) Pretext—the last

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

Blash’s arguments under Lockheed-Martin and otherwise.

II. Blash’s evidence fails under the McDonell Douglas analysis.

“When evaluating a discrimination claim based on circumstantial evidence,

[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).

Under the well-trod McDonnell Douglas framework, a


plaintiff first must make out a prima facie case of
discrimination that ‘in effect creates a presumption that
the employer unlawfully discriminated against the
employee.’ In race-discrimination cases, a plaintiff

motives below. [Doc. 101, p.41; Doc. 70.]

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makes out a prima facie case when he shows by a


preponderance of the evidence (1) that he is a member of
a protected racial class, (2) that he was qualified for the
position, (3) that he experienced an adverse employment
action, and (4) 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.

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.

(quoting Burdine, 450 U.S. at 254) (citations omitted).

Once the employer advances its legitimate,


nondiscriminatory reason, the plaintiff’s prima facie case
is rebutted and … the parties now ‘have a full and fair
opportunity’ to litigate whether the employer’s proffered
reason for its action is pretext. At all times, the plaintiff
retains “the ultimate burden of persuading the court that
she has been the victim of intentional discrimination.”

Id. (quoting Burdine, 450 U.S. at 255-56) (citations omitted).

A. Blash failed to produce sufficient evidence to establish a prima facie


case of discrimination [Appellant’s Brief, Point V].

Blash failed to establish a prima facie case of discrimination because he

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

asserting an intentional-discrimination claim under McDonnell Douglas must

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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

1213, 1218 (11th Cir. 2019) (en banc).

“Ordinarily … a similarly situated comparator will have engaged in the same

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

comparators must be sufficiently similar, in an objective sense, that they ‘cannot

reasonably be distinguished.’” Lewis I, 918 F.3d at 1227-28 (footnotes and

citations omitted).

As alleged comparators, Blash proposes two Caucasian deputies, Chris

White and Jordan Peavy, who were accused of using excessive force when

arresting an African American man. According to Blash, no termination decision

was made regarding White and Peavey until after the Georgia Bureau of

Investigation investigated their conduct. [Appellants’ Brief, pp. 24-25, 50-51.]

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

in Flowers. 803 F.3d at 1341 (“Flowers’s argument essentially boils down to

quibbling about whether [his comparators’] alleged violations were worse than his

own, not about whether they were sufficiently similar. On-the-ground

determinations of the severity of different types of workplace misconduct and how

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

differently for different conduct. That is not discrimination. “Discrimination … is

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

be distinguished” from the situation involving Blash.

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

https://gbi.georgia.gov/press-releases (showing press releases regarding many

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

excessive force investigation to the GBI, either in lieu of or in addition to any

internal investigation. That does not mean that the GBI serves as the de facto

Human Resources department for every sheriff’s office in Georgia.

Blash was not accused of violating any person’s civil rights. He was accused

of interfering with a federal investigation. A sheriff has the exclusive authority to

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.]

Cape determined this admitted conduct to be an offense worthy of termination. It is

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.

Blash and his alleged comparators engaged in materially different conduct

that authorized (even demanded) different procedures in response. He and his

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

prima facie case of discrimination.

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B. Defendants met their burden to articulate the legitimate basis for


Blash’s dismissal [Appellant’s Brief, Point III].

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

interference with an investigation. This fact is known to all involved in this

litigation, has never been in dispute, was admitted by Blash in his Amended

Complaint, and is amply supported by the evidence. Blash’s argument otherwise is

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

for his dismissal and ignores his own admissions. 3

1. Blash admitted the articulated basis for his dismissal.

In his Amended Complaint, Blash admits that, on his “information and

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

was terminated—his “alleged” interference with the Howard/Orta investigation.

[Id., ¶¶35-38.]

These allegations establish that there was never a dispute as to the

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.

2. There is direct evidence supporting the articulated basis for


Blash’s dismissal.

In supplemental responses to Blash’s interrogatories, sworn by Sheriff

Brannen, he explained his personal knowledge regarding Sheriff Cape’s articulated

basis for dismissing Blash:

In late November 2014, Major Freemont and then-


Captain Brannen met with Sheriff Cape concerning
information that United States Postal Inspector Jarrett
Arrington and Deputy Jay Williams had earlier
communicated to Major Freemont concerning [Blash’s]
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actions in the context of a pending criminal investigation.


Specifically, Major Freemont briefed Sheriff Cape that
the Sheriff’s Office had a problem because [Blash] had
interfered with a pending federal criminal investigation
by providing information about the investigation to one
of the suspects under investigation.

After being briefed, Sheriff Cape had [Blash]


called-in to meet with him. Shortly thereafter, a meeting
took place with Sheriff Cape, [Blash], Major Freemont
and then-Captain Brannen in attendance. During that
meeting, [Blash] admitted that he was trying to help an
acquaintance and acknowledged that he did wrong. At
the conclusion of the meeting, [Blash] indicated that he
intended to resign.

The following day, [Blash] informed Sheriff Cape


that his heart would not allow him to resign. That day,
Sheriff Cape terminated [Blash’s] employment.

[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

confronted Blash and Blash admitted to the conduct.

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

Freemont, Sheriff Cape, and then-Captain Brannen, at which Freemont briefed

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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

to the underlying conduct during that meeting).]

Cape’s statements to Brannen are not inadmissible hearsay, contrary to

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

his decision to terminate Blash’s employment. Brannen’s testimony and the

interrogatory response cited above satisfied the Defendants’ burden to come

forward with a legitimate basis for Blash’s dismissal.

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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3. The timing of and full circumstances surrounding Blash’s firing


supports the articulated basis for his dismissal.

Finally, the timing of and full circumstances surrounding Blash’s firing

suggests that he was fired for his interference with the postal investigation—and

suggests no other motive.

• 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.]

• In October or November 2014, at the request of McGriff, Blash identified

Orta from a photograph connected with a narcotics investigation of which he

was not a part. [Id., ¶5.]

• 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

investigating Postal Service employee Howard regarding possible

prescription drug theft. [Doc. 70-16, ¶¶10-11.]

• Surveillance revealed an individual giving what looked like a pill bottle to

Howard, and Blash identified that individual as Orta. [Id., ¶¶13-14.]

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• Shortly thereafter, Howard was arrested. [Id., ¶15.]

• It was McGriff’s “understanding that once Howard was arrested that the

investigation was over.” [Id., ¶18.]

• However, after her arrest, Howard became a cooperating witness for the

USPS. [Doc. 64-3, ¶11.]

• 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]

superiors of Blash’s conduct or Arrington would handle it.’” [Id., ¶¶15-19.]

• Williams reported all of the above to Major Freemont. [Id., ¶¶20-23.]

• Major Freemont briefed Sheriff Cape, in Brannen’s presence, informing

Cape that Blash “had provided information about the investigation to one of

the subjects under investigation.” [Doc. 64-4, pp.2-3.]

• Cape then told Brannen that he was firing Blash because Blash had

interfered with a federal investigation. [Doc. 72-1, p.27:7-20.]

• 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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Jay Williams’ testimony is not hearsay, as contended by Blash. Williams’

account of what Arrington told him is relevant because he communicated that

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-

20, 28:17 –30:19, 30:20 –33:5.]

Based on McGriff, Williams, and Blash’s testimony, the timing and

circumstances of Blash’s dismissal are suggestive of one motive therefore: Blash

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

come forward with a legitimate, nondiscriminatory reason for Blash’s dismissal.

C. Blash has not shown that the articulated basis for his dismissal was
pretext for discrimination [Appellant’s Brief, Point VI].

Blash’s argument regarding pretext is misguided and without merit. Blash

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

of fact as to pretext. [Appellants’ Brief, p.56.] Blash’s argument is incorrect and


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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.

1. There is no evidence that the articulated reason for Blash’s firing


was false.

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—

as Cape, Williams, Freemont, a prosecutor, and a grand jury concluded—an issue

of fact still does not exist as to whether Blash was discriminated against. “The fact

that an employer’s legitimate belief is or may potentially be incorrect is immaterial

so long as the employer’s decisions were not ultimately shown to be motivated by

unlawful discriminatory animus.” Howard, 754 Fed. Appx. at 808. “Title VII

functions only as a bulwark against unlawful discrimination; it does not substitute

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

connection in spring or summer 2014; to Blash identifying Orta at McGriff’s

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

interfered with an investigation, based on conduct reported to him by Freemont and

to Freemont by Williams.

Blash argues that the investigation was over when he spoke to Orta and that

he had no reason to believe that he was interfering with an investigation, though he

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

Blash’s evidence that cautioning civilians is a common practice also fails to

show pretext. As the District Court noted:

[T]he existence of this common practice is of no


consequence. There is absolutely no evidence in the
record that Defendant Cape was aware of any prior
instances or even tolerated this allegedly common
practice. … Irrespective of whether this common practice
exists, there’s a big difference between telling someone
to stay away from another person in a general sense––i.e.
“[H]ey man[,] you need to watch what you’re doing,”
“[Y]ou should stay away,” or “[B]e careful”––versus
telling someone to stay away from a specific target of an
investigation. Blash’s general statement that he says “. . .
stay away” to people “with whom [he is] familiar” could
mean anything. It could mean something as generic as
“stay away” from gangs because they’re bad.

[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

compromise any investigation.

This information was before Cape when he decided to fire Blash. Even if

Cape knew of and approved of the practice of cautioning civilians where

appropriate (and there is no evidence that he did), there is no evidence that Cape

would have approved of Blash’s warning to Orta under these circumstances.

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

violations. He attempted to show pretext, in part, by arguing that he was innocent

of the accusations against him. This Court explained:

As a theoretical matter, could the School District’s actual


reason for firing Flowers have been that Flowers is
black? Of course. Has Flowers produced any evidence,
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outside of his own conclusory say-so, that would support


an inference of racial discrimination from the
circumstances? He has not. In the light most favorable to
Flowers, the evidence at most might support an inference
that the School District’s investigation into Flowers’s
potential recruiting violations may have been pretext of
something. The School District’s ham-handed
investigation and actions singling out Flowers could lead
a reasonable jury to conclude that Pugh had it in for
Flowers from the beginning. But Flowers offers no
evidence, after conducting extensive discovery and
assembling a lengthy record, that the investigation was
pretext of discrimination on the basis of his race.

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

any evidence that unlawful discriminatory animus actually motivated Hyundai’s

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,

summary judgment against Blash was appropriate.

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III. Blash failed to come forward with any evidence—much less a


“convincing mosaic of circumstantial evidence”—that he was
discriminated against.

A. The allegations of racism against Sheriff Brannen do not create an


issue of fact as to whether Sheriff Cape fired Blash because of his race
[Appellant’s Brief, Point I].

Blash’s “mosaic of circumstantial evidence,” summed up syllogistically, is

as follows:

Brannen, Blash’s direct superior, is racist.


Brannen had considerable power in the Sheriff’s Office.
Therefore, Blash was fired because of his race.

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 whatsoever to connect Brannen’s alleged racism to Blash’s termination.

Evidence that Brannen has said racist things is not the same thing as a mosaic of

circumstantial evidence that Cape fired Blash because of his race.

The McDonnell Douglas “burden-shifting analysis helps to filter out


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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

forth evidence of discrimination on the basis of race. As we have made clear,

‘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

plaintiff has ‘create[d] a triable issue concerning the employer’s discriminatory

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

workplace with that of judges.” Id. at 1336 (quoting Damon v. Fleming

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

Radio/Rahall Commc’ns, 738 F.2d 1181, 1187 (11th Cir.1984)).

“A ‘convincing mosaic’ may be shown by evidence that demonstrates,

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

employer’s justification is pretextual.” Lewis v. City of Union City, Georgia,

[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

(other than offering to allow Blash to resign). There is no evidence of ambiguous

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

discussed above, there is no evidence of any similarly situated employees at all,

and certainly no evidence that they are systematically treated better. (See supra,

§II-A.) And, finally, as previously discussed, there is no evidence of pretext. (See

supra, §II-C.)

Significantly, the “convincing mosaic” examples laid out in Lewis II all

relate directly to the decision at issue. “A supervisor has acted with racial bias in

other circumstances” is not a listed example. Likewise, in Smith v. Lockheed-

Martin, the circumstantial evidence found to be sufficient to raise an issue of

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

omitted) (helpfully summarizing the key facts in Lockheed-Martin). Blash can

show nothing like that.

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.

• There is no evidence that Brannen influenced Cape’s decision to


fire Blash.

Four of the first five bullet points in Blash’s mosaic of evidence go to

Brannen’s alleged influence over Cape. According to multiple witnesses, Brannen,

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;

Doc. 70-15, ¶¶9-10.] But as Blash’s brief indirectly acknowledges, Brannen’s

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

mistreated African American deputy Anthony Taylor. [Appellant’s Brief, p. 34;

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

to fire someone because of their race or for any other reason.


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More importantly, there is no evidence that Brannen pressured or influenced

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

Investigator Arrington; that Williams reported Blash’s behavior to Major

Freemont; that Major Freemont reported it to Cape, in Brannen’s presence; and

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.

• Brannen’s alleged racist words do not support Blash’s claim


that he was discriminated against.

Blash lists “Brannen’s racism” as part of his mosaic. Blash presents

evidence that Brannen has said highly offensive, racist things about African

Americans, including using the “N-word” and making other derogatory

comments.6 [Appellant’s Brief, pp.31-34.] Without in any way downplaying the

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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offensiveness of these comments (which were denied by Brannen at his

deposition), they are of limited probative value here and do not create an issue of

material fact.

“A decision maker’s discriminatory comment which may not qualify as

direct evidence of discrimination may constitute circumstantial evidence which

could assist a jury in disbelieving the employer’s proffered reasons for the adverse

action. Although a decision maker’s statement … can serve as evidence of

discrimination, ‘statements by nondecisionmakers, or statements by

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)

(O’Connor, J., concurring)).7 None of Brannen’s alleged racial comments related

“to the decisional process.” That is, none were directed at Blash; none had any

connection whatsoever to Blash’s termination; and none suggested that Brannen

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

received about Brannen from other, unidentified individuals).]


7
Blash cites Steger for the proposition that racist comments are admissible to show
racial animus. [Appellant’s Brief, p. 37.] But, in Steger, this Court ruled that the
comments in question were properly excluded from evidence because they were
not made by a decision-maker. 318 F.3d at 1079.

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to fire Blash and exercised that authority. Brannen’s alleged racist comments

cannot meet Blash’s burden to show discrimination. 8 Williams, 777 Fed.Appx. at

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.”).

• McGriff and other’s testimony that they disagreed with Cape’s


decision to fire Blash does not create an issue of fact.

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

discussion above (surpra, §II-C) is incorporated here by reference. As shown

there, Blash has admitted the underlying conduct, and the evidence shows that

Sheriff Cape reasonably concluded that Blash improperly interfered in a criminal

investigation. There is no evidence that this decision was influenced to any degree

by Blash’s race.

• Blash has come forward with no evidence of disparate


treatment of deputies based on race that suggests Blash was
discriminated against here.

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

allegations in this case.

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

was terminated for engaging in entirely unrelated conduct. There is no evidentiary

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

to whether Blash was terminated because of his race.

• Blash was not entitled to a GBI investigation.

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

two deputies accused of materially different conduct under materially different


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circumstances were treated differently. That is not discrimination. Lewis I, 918

F.3d at 1225.

Accordingly, Blash’s proposed mosaic of circumstantial evidence falls far

short of establishing discrimination.

B. Blash’s allegations that Cape was racist do not show discrimination


in Blash’s firing [Appellant’s Brief, Point II].

According to Blash: “The record evidence … leads to the reasonable

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

African American.” [Appellant’s Brief, p. 19.] Obviously, if Cape suspended

Brannen for hostile behavior towards a Black deputy, it cannot also be true that

Cape did nothing about Brannen’s alleged racially charged misconduct.

Blash fails to explain how Cape allegedly failing to hold Brannen

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

about Howard was inappropriate. That is not illegal discrimination.

IV. Blash failed to present evidence sufficient to establish a “cat’s paw”


theory of liability [Appellant’s Brief, Point IV].

As an initial matter, Blash’s attempt to establish a cat’s paw theory of

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

employer liable for a biased subordinate’s discriminatory animus, not the

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

to terminate Blash is irrelevant. Even disregarding Blash’s argument as to Cape’s

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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According to Blash, “[t]he evidence of Brannen’s racism, his influence over

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

summary judgment, however, Blash’s attempts at establishing a cat’s paw theory

of liability in this case completely miss the point. [Doc. 101, pp.40-41.] While an

employer may be held liable for the discriminatory animus of a non-decisionmaker

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

certainly not that he influenced the decision for a discriminatory reason.

This Court has long recognized the cat’s paw theory, wherein an employer

may be held liable for discriminatory conduct when a neutral decisionmaker

followed the biased recommendation of a subordinate without independently

investigating the allegations of misconduct. See Llampallas, 163 F.3d at 1249

(determining cat’s paw theory did not apply where supervisor did not recommend

or suggest decisionmaker take adverse employment action against plaintiff and

employer conducted independent investigation prior to firing plaintiff); Stimpson,

186 F.3d at 1332 (reversing judgment for plaintiff holding plaintiff did not present

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sufficient evidence to allow a reasonable jury to find causation between City’s

alleged discriminatory animus and Board’s decision to terminate); Crawford, 529

F.3d at 979 n.21 (finding plaintiff failed to show causal connection between

supervisor’s biased recommendation and neutral decisionmaker’s adverse

employment decisions against plaintiff).

The Supreme Court’s decision in Staub did not change this Court’s already

established case law on this subject. Instead, it clarified the importance of

proximate cause and established that an independent investigation by the

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

Uniformed Services Employment and Reemployment Rights Act (USERRA), the

Supreme Court held that an employer could only be liable “if a supervisor

performs an act motivated by [discriminatory] animus that is intended by the

supervisor to cause an adverse employment action, and if that act is a proximate

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

from the supervisor’s recommendation, entirely justified.” Id. at 421. Significantly,

“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

Id. (emphasis added).

Thus, to proceed under a cat's paw theory, Blash must make a minimum

showing that Cape followed Brannen’s biased recommendation. Id. at 420;

Stimpson, 186 F.3d at 1331. Specifically, he must show that (1) Brannen

performed an act motivated by racial animus that is intended to cause an adverse

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

recommendation was biased.

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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As with his “convincing mosaic” (Appellant’s “Point I”) and “pretext”

(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.]

Here, there is no evidence that Brannen pressured or influenced Cape to fire

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

mistreated African American deputy Anthony Taylor. [Appellant’s Brief, p.34;

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

not mean that Brannen did so on this occasion.

According to Blash, “[t]he District Court erred when it failed to draw the

reasonable inference in Blash’s favor, that Brannen was involved in Blash’s

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

Defendant Brannen” improperly considered Brannen’s testimony over the alleged

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

did all the talking. [Doc. 72-1, p.30:2-7.]

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

improperly considered this testimony over the alleged “admission.” [Appellant’s

Brief, p.47.] In other words, Blash would have this Court infer that Brannen’s mere

presence at the meeting where a discussion took place is tantamount to evidence of

an overt action—recommending that Cape terminate Blash. That is not a

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.

[See supra pp.19-20; Doc. 72-1, pp. 27:25 - 28:2.]

Moreover, Blash contends that the evidence of Brannen’s general racism is

sufficient to support the inference that Brannen was motivated by discriminatory

animus in his influence on Cape’s decision to terminate Blash. Yet, Blash

presented no “evidence of Brannen’s racism” in Point IV. Instead, he cites to

numerous cases, many of which he cited in his convincing mosaic argument in

Point I, for the proposition that a supervisor’s statements are generally admissible

as circumstantial evidence of discrimination or pretext. [See Appellant’s Brief,

pp.49-51.] None of the cases Blash cites in support, however, analyzed such

statements in the context of a cat’s paw analysis.12

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

discrimination directly toward the plaintiff, in addition to specific evidence tying

the supervisor’s recommendation to the ultimate employment decision. See, e.g.,

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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plaintiff’s military service, intent to punish him therefore, and recommendation to

terminate his employment); King v. v. Volunteers of Am., N. Alabama, Inc., 502

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

that the decision maker rubber-stamps her recommendations); Miller v. Polaris

Laboratories, LLC, 797 F.3d 486, 490 (7th Cir. 2015) (concluding that

supervisors’ racist comments specifically about plaintiff, together with testimony

of other witnesses who personally observed supervisors tampering with plaintiff’s

work and overheard remarks implying supervisors were intentionally making

plaintiff’s work more difficult could lead jury to believe that tampering was

discriminatory and proximately caused plaintiff’s termination).

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

way motivated, Cape’s decision to terminate Blash.

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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

paw theory of liability on summary judgment reflects its earlier misapprehension

of Staub in dismissing his claims against Brannen in his individual capacity.

[Appellant’s Brief, pp. 48-49.] 13 In opposition to defendants’ motion for summary

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

declarations by those familiar with Defendant Brannen is unavailing.” [Doc. 101,

p. 41.] As a result, Blash’s “resign or be fired ultimatum” argument is of no

relevance on summary judgment in this case.

V. The Supreme Court’s decision in Bostock v. Clayton County, Georgia,


does not change the outcome of this case. [Appellant’s Brief, Point VII.]

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

based on sexual orientation or gender identity. Blash counterintuitively argues that

Bostock controls this case, suggesting that Bostock (without saying so) overruled

decades of Title VII jurisprudence by doing away with the distinction between

mixed-motive and single-motive cases. It did not.

If the Supreme Court had intended to overrule or displace McDonnell

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

intentionally fires an individual employee based in part on sex.” This underlying

principle is entirely consistent with the single-motive and mixed-motive

frameworks. See Lockheed–Martin, 644 F.3d at 1328 (“[T]he plaintiff will always

survive summary judgment if he presents circumstantial evidence that creates a

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

evidence for a reasonable jury to conclude … that [her protected characteristic]

was a motivating factor for [an] adverse employment decision.’”) (some alterations

in original).

As discussed in detail above, there is no evidence whatsoever that Blash’s

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—

rightly or wrongly—that Blash had improperly interfered with an investigation.

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].

Blash’s §1981/§1983 racial discrimination claim against Brannen in his

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

“rubber-stamped” such recommendation. An individual can only be held liable

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

decision to choose between immediate resignation or termination, which are

functionally the same.” [Appellant’s Brief, p. 66.]

Blash contends that a cat’s paw theory of liability can be used to impose

individual liability on an unlawfully motivated subordinate (i.e., non-

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

decision, whether or not the decision maker conducted an independent

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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Blash’s reliance on a cat’s paw theory to establish Brannen’s individual

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

pieces together. [Appellant’s Brief, pp.65-67 (citing cases analyzing individual

liability in §1981/§1983 retaliation claims).] A review of the facts of the cited

cases and the various courts’ legal analyses, however, reveals that each of these

cases is clearly distinguishable from the case at hand.15

“rubber stamping” the subordinate’s (Carroll) discriminatory recommendations for


purposes of Johnston’s qualified immunity. 529 F.3d at n.21. This is clearly
distinguished from Blash’s claims against Brannen—the allegedly discriminatory
subordinate. Moreover, Brannen did not make a qualified immunity argument
against Blash’s individual liability claims and thus it is irrelevant to this particular
analysis.
15
These “individual liability” cases analyzed a cat’s paw theory against a
subordinate in the context of retaliation claims asserted under § 1983 for conduct
protected by the First Amendment. See Tejada-Batista v. Morales, 424 F.3d 97 (1st
Cir. 2005) (affirming jury verdict for plaintiff who was discharged in retaliation for
protected speech); Maestas v. Segura, 416 F. 3d 1182 (10th Cir. 2005) (affirming
summary judgment for defendants on plaintiffs’ retaliation claims where plaintiffs
failed to link their speech to defendant’s decision to transfer them); Strahan v.
Kirkland, 287 F. 3d 821 (9th Cir. 2002) (affirming summary judgment for
defendants where plaintiff failed to show his association with motorcycle club was
substantial motivating factor in sheriff’s decision to discipline him); Darnell v.
Ford, 903 F. 2d 556 (8th Cir. 1990) (affirming jury verdict for plaintiff who
opposed superior’s candidacy for public office where record showed plaintiff
would not have been disciplined “but for” superior’s recommendation); Saye v. St.

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Second, accepting the allegations of Blash’s Complaint as true, the District

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

acted separately and independently from Brannen’s recommendation. See Stevens

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

Matson.”). Blash’s argument that Cape’s decision to choose between immediate

resignation or termination are functionally the same is irrelevant because this

argument was not raised below in the context of Brannen’s motion to dismiss the

individual capacity §1983 race discrimination claim. 16

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

mere speculation that Brannen’s insistence was motivated by his discriminatory

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

show that: (1) Brannen’s recommendation was motivated by a discriminatory

animus; (2) that he intended the recommendation to result in Blash’s termination;

and (3) that his biased recommendation was the proximate cause of Blash’s

termination.

official capacity claims. [See Doc. 100; Doc. 101.]

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Blash did not alleged these facts. The Complaint alleges only one

discriminatory statement specifically related to Blash (but unrelated to his

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

discriminatory animus in terminating Blash based on his tolerance and acceptance

of Brannen’s alleged racism, thus undercutting the requirement of an unbiased

decisionmaker who merely relied upon the recommendation of a biased

subordinate.18 [See Doc. 1, ¶¶ 15, 17, 21, 31, 33-37, 43-44.]

Moreover, even assuming, arguendo, that Sheriff Cape was an unbiased

decisionmaker who relied on Brannen’s recommendation, Blash’s allegations do

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

determined that Blash acted improperly. See McCleary-Evans v. Md. Dept. of

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

Highway Administration discriminated against her because she was black or

female).

Simply put, the conclusory and speculative allegations of the complaint,

without more, do not support Blash’s race discrimination claim against Brannen in

his individual capacity. Blash did not adequately allege that Brannen was

motivated by any discriminatory animus in suggesting Blash’s termination, or that

such suggestion was blindly followed by an unbiased Sheriff Cape. In other words,

Brannen’s four alleged discriminatory statements—three of which had nothing to

do with Blash, two of which were not even racial, and none of which Blash heard

himself—are simply not enough to establish a causal link between Brannen’s

alleged racial animus and Blash’s termination. See Dixon, 303 F.3d at 1275; Zatler,

802 F.2d at 401.

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Accordingly, the District Court did not err in dismissing Blash’s

§1981/§1983 race discrimination claim against Brannen in his individual capacity

for failure to state a claim because Blash failed to adequately plead facts to support

cat’s paw liability.

VII. The Court properly ruled that the claims against former-Sheriff Cape
are barred by qualified immunity [Appellant’s Brief, Point IX].

Blash’s claims against former-Sheriff Cape in his individual capacity are

barred by qualified immunity. “‘[Q]ualified immunity protects government

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

conduct violates “clearly established statutory or constitutional rights of which a

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.

2008) (quoting McMillian v. Johnson, 88 F.3d 1554, 1562 (11th Cir.1996))

(citations and footnote omitted) (alteration in original). “The relevant inquiry is

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

1528, 1534 (11th Cir.1996)) (citations omitted) (alteration in original).


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For the reasons discussed above, Blash has not shown that he was the victim

of race discrimination by Sheriff Cape. However, even if he had, to avoid the

defense of qualified immunity, he would have had to additionally show that “the

defendant’s conduct was [not] ‘objectively reasonable’ in light of that [Equal

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

alteration in original). Blash was required to “demonstrate at this step in the

qualified immunity analysis that a reasonable [sheriff] would know that [firing a

deputy] in the factual circumstances presented here violated clearly established

law.” Id.

“Clearly established law provides that state officials ‘can be motivated, in

part, by a dislike or hostility toward a certain protected class to which a citizen

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

interfered with a federal investigation by warning Orta to stay away from

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cooperating witness Howard. Even if it was commonplace for deputies to caution

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,

OWEN, GLEATON, EGAN, JONES &


SWEENEY, LLP

/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

requirements, type style requirements, and type-volume limitation set forth in

FRAP 32(a)(5), 32(a)(6), and 32(a)(7)(B).

1. This Brief has been prepared in a proportionally spaced

typeface using Microsoft Word 2010 in 14-point Times New Roman

font; and

2. This Brief contains 12,926 words, excluding the parts of the

Brief exempted by 11th Cir. R. 32-4.

This 26th day of August, 2020.

OWEN, GLEATON, EGAN, JONES &


SWEENEY, LLP

/s/Derrick L. Bingham
DERRICK L. BINGHAM, ESQ.
Georgia Bar No. 141217

303 Peachtree Street, N.E.


Suite 2850
Atlanta, Georgia 30308
(404) 688-2600

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

automatically send email notification of such filing to the following attorneys of

record:

This 26th day of August, 2020.

OWEN, GLEATON, EGAN, JONES &


SWEENEY, LLP

/s/Derrick L. Bingham
DERRICK L. BINGHAM, ESQ.
Georgia Bar No. 141217

303 Peachtree Street, N.E.


Suite 2850
Atlanta, Georgia 30308
(404) 688-2600

C-2

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