Blash Reply Brief

USCA11 Case: 20-10337 Date Filed: 10/28/2020 Page: 1 of 41
UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
_____________________________
NO. 20-10337-D
_____________________________
JOHNNY BLASH,
Appellant,
v.
WILLIAM CAPE, et al.,
Appellees.
_______________________________________________________________
On Appeal from the United States District Court

for the Middle District of Georgia
No. 5:17-cv-00380-TES
_______________________________________________________________
APPELLANT’S REPLY BRIEF

_______________________________________________________________
Robert N. Marx, Esq.

Jean Simonoff Marx, Esq.
MARX & MARX, L.L.C.
1050 Crown Pointe Parkway
Suite 500
Atlanta, GA 30338
(404) 261-9559
[email protected]

ATLANTA DIVISION
JOHNNY BLASH, x
Appellant, :
vs. : No. 20-10337-D
WILLIAM CAPE, et al. :
Appellees. :
_____________________________________ x
APPELLANT JOHNNY BLASH’S AMENDED

CERTIFICATE OF INTERESTED PERSONS
1. Pursuant to Federal Rules of Appellate Procedure and Eleventh Circuit
Rule 26.1-1, Appellant Johnny Blash, certifies, by and through his undersigned
counsel of record, that to his knowledge the following constitutes a complete list of
the trial judge, attorneys, persons, associations of persons, firms, partnerships, and
corporations that have an interest in the outcome of this appeal:
Blash, Johnny, Appellant
Bingham, Derrick L., Attorney for Appellees
Brannen, Danny, Individually and in his Official Capacity as Sheriff, Pulaski
County, Georgia, Appellee
Cape, William B., Executor of the Estate of Billy W. Cape, Appellee
Cronin, Donald Andrew, Jr., Attorney for Appellees
1

JOHNNY BLASH v. WILLIAM CAPE et al.
CERTIFICATE OF INTERESTED PERSONS - CONTINUED
20-10337-D
Marx & Marx, LLC, Attorneys for Appellant
Marx, Robert N., Attorney for Appellant
Marx, Jean Simonoff, Attorney for Appellant
O’Quinn & Cronin, LLC, Attorneys for Appellees
Owen, Gleaton, Egan, Jones & Sweeney, LLP, Attorneys for Appellees
Self, Hon. Tilman E., III, U.S. District Court Judge
Marx & Marx, LLC is not publicly held.
Respectfully submitted this 29th day of June 2020.
s/Robert N. Marx______
Georgia Bar Number 475280
Jean Simonoff Marx, Esq.
Georgia Bar No. 475276
Marx & Marx, LLC
Suite 500
Atlanta, Georgia 30338
Telephone: (404) 261-9559
[email protected]
Attorneys for Appellant Johnny Blash
2

JOHNNY BLASH v. WILLIAM CAPE, et al.
CERTIFICATE OF INTERESTED PERSONS - CONTINUED
20-10337-D
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the Court
for the United States Court of Appeals for the Eleventh Circuit by using the
appellate CM/ECF system on June 29, 2020.
I certify that the following are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system:
Donald Andrew Cronin, Jr., Esq. Derrick L. Bingham, Esq.

103 Keys Ferry Street 330 Peachtree St.N.E, Ste. 2850
McDonough, GA 30253 Atlanta, GA 30308
[email protected] [email protected]
Atlanta, Georgia
June 29, 2020
s/Robert N. Marx
Marx & Marx, LLC
Suite 500
Telephone: (404) 261-9559
[email protected]
3
Table of Contents
Page
Certificate of Interested Persons
and Corporate Disclosure Statement.................................................................... 1
Table of Contents................................................................................................ 4
Table of Citations……………………………………………………………..... 6
Introduction…………………………………………………………………….. 10
Point I
Blash is Not “Boxed In” to McDonnell Douglas ...……………………. 13
Point II
Appellees Do Not Refute the Evidence Demonstrating
Cape’s and Brannen’s Racism…………………………………………. 16
Point III
Hearsay Testimony Cannot Cover Up
The Absence of an Articulation……………………………………….. 19
1. Appellees concede that hearsay testimony must

be “otherwise admissible”…………………………………… 20
2. Appellees Did Not Argue Fed.R.Evid. 803(3)

to the District Court…………………………………………. 21
3. Williams’ Testimony……………………………………….. 21
4. Brannen’s Testimony re Freemont…………………………. 23
5. Brannen’s testimony about what Cape said………………… 24
6. This Court may not draw inferences in Appellees’ favor to

compensate for inadmissible hearsay……………………….. 25
7. Blash’s Complaint Does not Constitute Any

Judicial Admission………………………………………….. 26
4
Table of Contents (Cont’d.)

Page
Point IV
Appellees Cannot Refute Blash’s Mosaic………………………..…… 29
1. Appellees’ “Pretext Plus” Argument at pp. 21-22

is Just Plain Wrong …………………………………………. 32
2. The Elrod “Good Faith” Argument Does not Apply………. 33
3. Systematic Better Treatment of Caucasians………………… 33
Point V
Appellees’ Failure to Refute Bostock’s Instruction that
“But For” or “Because of” under Title VII Means
Played Any Part……………………………………………………… 35
Point VI
An “Influential” Racist is Likely to Influence a
Termination Decision Based on his Racial Animus…………………… 35
Point VII
The District Court Improperly Dismissed Brannen
Individually Under §1981(§1983)…………………………………….. 36
Point VIII
Cape was not Entitled to Qualified Immunity……………………….. 37
Conclusion: This Court Should Reverse the Dismissal of

Blash’s Title VII Claim For Unlawful Discharge
and Reverse the Dismissal of Blash’s §1981/§1983
Claims Against Cape and Brannen in Their
Individual Capacities………………………………….. 38
Certificate of Compliance…………………………………………………… 39
Certificate of Service………………………………………………………… 39
5
Table of Citations
Page(s)
Animal Care Sys., Inc. v. Hydropac/Lab Prod., Inc.,
2015 WL 1469513 (D. Colo. Mar. 26, 2015)……………………………………… 27
Bell Atlantic Corp. v. Twombly,

550 U.S. 556 (2007)………………………………………………………….. 37
Best Canvas Products & Supplies v. Ploof Truck Lines,

713 F.2d 618 (11th Cir. 1983)………………………………………………… 27
Bonner v. City of Prichard, Ala.,

661 F.2d 1206 (11th Cir. 1981)……………………………………………… 22
Bostock v. Clayton County, Georgia,

140 S.Ct. 1731 (2020)..………………………………….……………………. 35
Bowen v. Manheim Remarketing Inc.,

882 F.3d 1358 (11th Cir. 2018)………………………………………………… 10
Combs v. Plantation Patterns,

106 F.3d 1519 (11th Cir. 1997)………………………………………………… 32
Cooper v. Meridian Yachts, Ltd.,

575 F.3d 1151 (11th Cir. 2009)……………………………………………….. 27
Cooper-Houston v. S. Ry. Co.,

37 F.3d 603 (11th Cir. 1994)………………………………………………. 16, 34
Corinth Inv'rs Holdings v. Evanston Ins. Co.,

2014 WL 4222168 (E.D. Tex. Aug. 24, 2014)……………………………….. 28
Crawford v. City of Fairburn,

482 F.3d 1305 (11th Cir. 2007)………………………………………………… 32
Deerpoint Grp., Inc. v. Agrigenix, LLC,

345 F. Supp. 3d 1207 (E.D. Cal. 2018)……………………………………… 28
Eaves v. Work Force Central Florida,

623 Fed. App’x. 955, 960 (11th Cir. 2015)…………………………………… 22
6
Table of Citations (Cont’d.)

Page(s)
Elrod v. Sears, Roebuck & Co.,
939 F.2d 1466 (11th Cir. 1991)………………………………………………. 33
Flowers v. Troup County, Ga., School District,

803 F.3d 1327 (11th Cir. 2015)………………………………………………. 33
Gogel v. Kia Motors Mfg. of Georgia, Inc.,

967 F. 3d 1121 (11th Cir. 2020)……………………………………………… 33
Heatherly v. Univ. of Alabama Bd. of Trustees,

778 F. App’x. 690, 693 (11th Cir. 2019)…………………………………….. 10
Howard v. Hyundai Motor Manufacturing Alabama,

754 Fed. App’x. 622 (11th Cir. 2018)……………………………………… 32
Jones v. Gerwens,
874 F.2d 1534 (11th Cir. 1989)……………………………………………. 14
Lewis v. City of Union City, Georgia, [Lewis II ],

934 F.3d 1169 (11th Cir. 2019)……………………………………….. …. 34
Macuba v. DeBoer,
193 F.3d 1316 (11th Cir. 1999)…………………………………………... 20, 23
Mahoney vs. Owens,

818 Fed. App'x 894 (11th Cir. 2020)…………………………………. 10, 18
McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973)…………………………………………………… passim
Monaghan v. Worldpay US, Inc.,

955 F.3d 855 (11th Cir. 2020)……………………………………. ……. 15
Patel v. Lanier Cty. Georgia,

969 F.3d 1173 (11th Cir. 2020)…………………………………………. 25, 29
…..
7

Page(s)
Prather v. Prather
650 F.2d 88 (5th Cir. Unit A July 1981)………………………………….. 22
Quigg v. Thomas County School District,

814 F.3d 1227 (11th Cir. 2016)…………………………………………… 14, 15
Reeves v. Sanderson Plumbing Prod., Inc.,

530 U.S. 133 (2000)……………………………………………………… 32
Rioux v. City of Atlanta,

520 F.3d 1269 (11th Cir. 2008)…………………………………………… 37
Roger Miller Music, Inc. v. Sony/ATV Publ'g, LLC,

477 F.3d 383 (6th Cir. 2007)……………………………………………… 27
Smith v. Lockheed-Martin Corp.,

644 F.3d 1321 (11th Cir. 2011)…………………………………… passim
Stanley v. City of Dalton, Ga.,

219 F.3d 1280 (11th Cir.2000)…………………………………….. …….. 37
Stone & Webster Const., Inc. v. U.S. Dep't of Labor,

684 F.3d 1127 (11th Cir. 2012)…………………………………………….. 33
T. Harris Young & Assocs., Inc. v. Marquette Elecs., Inc.,

931 F.2d 816 (11th Cir. 1991)……………………………………………….. 21
Texas Dep’t of Cnty. Affairs v. Burdine,

450 U.S. 248 (1981)………………………………………………………….. 19
Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008)……………………………………. 21, 28
United States v. Belculfine,

527 F.2d 941 (1st Cir. 1975)…………………………………………… …… 27
8

Page(s)
United States v. Billings,
2020 WL 5870245 (11th Cir. Oct. 2, 2020)………………………………. 15
United States Postal Service Board of Governors v. Aikens,

460 U.S. 711 (1983)………………………………………………………. 14
United States v. Samaniego,

345 F.3d 1280, 1282 (11th Cir. 2003)…………………………………………… 24
Whetstone Candy Co. v. Kraft Foods, Inc.,

351 F.3d 1067(11th Cir. 2003)……………………………………………… 24, 26
Williams v. Hous. Opportunities For Persons With Exceptionalities,

777 Fed. Appx. 451 (11th Cir. July 15, 2019) (unpublished)……………. 14, 15
42 U.S.C. §1981………………………………………………………. passim
42 U.S.C. §1983………………………………………………………. passim
FRE 803(1)…………………………………………………………….. 21, 26
FRE 803(3)…………………………………………………………….. 21, 23, 26
FRE 803(21)……………………………………………………………….. 16
9
Introduction
What kind of Sheriff tolerates and laughs along with “Nigger” remarks as a
routine matter? The answer is “the obvious story” here.
In stark contrast to Brannen’s flagrant racism which he espoused with
impunity, this Court in Mahoney vs. Owens, 818 F. App'x 894, 899 (11th Cir.
2020) “condemn[ed] Owen’s racist remarks, jokes and communications” and noted
that Owens had resigned from the Defendant police department after his supervisor
had learned that he had used racial slurs and exchanged racially inflammatory
memes and jokes at a previous job.
Whether or not Brannen called Blash a “Nigger” to his face, Brannen’s
unrebutted racism was condemnable, and instead of condemning it, Cape tolerated
it, helped perpetuate it, and laughed along with it. This warranted denial of
summary judgment. Bowen v. Manheim Remarketing, Inc., 882 F.3d 1358 (11th
Cir. 2018) (reversing summary judgment; evidence of managers’ sex bias included
statements unrelated to the plaintiff or the particular adverse employment action at
issue); Heatherly v. Univ. of Alabama Bd. of Trustees, 778 F. App’x. 690, 693 (11th
Cir. 2019) (“. . .Bowen turned in no small part on evidence indicating that the
plaintiff’s managers “were influenced by sex bias,” “took sex into account when
10
considering personnel matters,” and “repeatedly exhibited an unwillingness to treat
women equally in the workplace.”)
Appellees cite no case in which summary judgment was granted in favor of
the employer in the absence of any evidence from the decisionmaker. This case
presents the unique set of circumstances where the record demonstrates both
Cape’s and Brannen’s racism, but there is absolutely no admissible record
evidence in any form, establishing what Cape did or did not know, what Cape did
or did not honestly believe, or the reason Cape ostensibly terminated Blash.
Appellees waffle on who exactly the decision maker was, contending to the
District Court that it was former Sheriff Cape, and now telling this Court that it
was Cape and Freemont. (App. Br. p. 18, n.4) 1. In any event, there is no testimony
from Cape or Freemont as to why Blash was fired.2
Appellees do not challenge Blash’s assertions that the District Court acted
improperly in assuming an articulation by Cape even though the District Court
conceded that “[w]e do not know, nor will we ever know, Defendant Cape’s state
1
Appellees’ brief on appeal will be referred to as “App. Br.” Blash’s main brief on
appeal will be referred to as “Blash Br.”
2
Appellees statement to this Court that “Cape and Freemont” made the decision to
terminate Blash, is undermined by their prior position, and their statement at the
top of the same page 18, that Cape alone made the termination decision. The
District Court also so found (R. 101, pp. 13, 41), which Appellees did not
challenge. This “inconsistency” casts doubt on Appellees’ credibility going to
pretext, especially given the absence of any evidence from Freemont or Cape.
11
of mind”. (R. 101. p.42). Appellees have no response to Blash’s argument that the
District Court overstepped its role on summary judgment, as evidenced by such
statements by the District Court that “Defendant Cape …appears to have made a
decision to terminate Blash for a non-discriminatory fireable offense” or that “the
obvious story is that Defendant Cape terminated Blash because Blash interfered
with the USPS investigation”. Appellees’ argument that “the evidence shows that
Cape decided to fire Blash based on the information provided to him” (App. Br. p.
24), misstates the record.
Similarly, Appellees do not address Blash’s arguments or repeated examples
of the District Court improperly drawing inferences in their favor and against
Blash. Rather, like the District Court did, Appellees urge this Court here, to string
together inadmissible evidence to arrive at an inference regarding Cape’s reason,
even though there is no admissible evidence establishing Cape’s reason or belief.
Appellees’ argument at pages 16- 21 fails precisely because Cape never
“articulated a basis” for dismissing Blash, via any admissible document, sworn
statement or testimony, and it was impermissible for the District Court to accept
Appellees version of disputed facts and to draw inferences against Blash in order to
grant summary judgment.
12
POINT I
BLASH IS NOT “BOXED IN” TO McDONNELL DOUGLAS3
Appellees’ McDonnell Douglas/comparator argument is a red herring
because here there is no need to infer the racism that is conceded by the Appellees
and the District Court.
This Court has never held as a matter of binding law that a plaintiff in a
single motive/pretext case must use McDonnell Douglas and produce a
comparator. Appellees’ central argument (App. Br. pp. 9-10) that Blash is limited
to a McDonnell Douglas is legally incorrect and misrepresents Blash’s main brief
to this Court.
Blash clearly argued in his main brief on appeal that under Smith v.
Lockheed Martin 4 he could use a “convincing mosaic” theory and need not
produce a comparator (Blash Br. pp. 28-29) And while Blash met head on the
unarticulated articulation that the District Court surmised, and demonstrated its
pretextuality, he also argued that that evidence coupled with the evidence of
Brannen’s and Cape’s racism support a finding that race played a part in his
termination. (Blash Br. pp. 28-39, 42-43, 62-63).
3
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
4
Smith v. Lockheed Martin, 644 F.3d 1321, 1328 (11th Cir. 2011).
13
This Court should not even consider Appellees argument that Blash is
precluded from using a convincing mosaic theory, because the District Court itself
said that Blash is not limited to the McDonnell Douglas (R. 101, p. 24, 35-36), and
Appellees did not cross appeal.
Appellees’ argument (App. Br. p. 9) that Blash “conflated” McDonnell
Douglas, Lockheed-Martin and Quigg5 is wrong, and is premised on Williams’6
misreading of Quigg. This Court made clear in Lockheed-Martin, that a plaintiff in
a single motive case always defeats summary judgment if the evidence creates a
convincing mosaic of circumstantial evidence demonstrating a discriminatory
motive, even without any comparator. Appellees cannot refute this Circuit’s settled
law. Lockheed Martin, 644 F.3d at 1328 7.
Quigg did not hold that use of a mosaic of circumstantial evidence instead of
McDonnell Douglas may only be used in a mixed motive case. Lockheed-Martin
which established the “convincing mosaic” approach as an alternative to
5
Quigg v. Thomas County School Dist., 814 F.3d 1227 (11th Cir. 2016).
6
Williams v. Housing Opportunities For Persons With Exceptionalities, 777 Fed.
App’x. 451 (11th Cir. 2019).
7
Even under McDonnell Douglas, the prima facie case is not “rigid, mechanistic or
ritualistic” and given varying factual situations, the prima facie case may be
established “in a number of ways.” Jones v. Gerwens, 874 F.2d 1534, 1539 (11th
Cir. 1989), citing, United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 715 (1983) and McDonnell Douglas, 411 U.S. at 802 n. 13.
14
McDonnell Douglas, was not a mixed motive case8 and Quigg did not overrule
Lockheed-Martin.9
Appellees mistakenly rely on Williams v. Housing Opportunities
(unpublished) which is not binding and which misstates Quigg. Thus, Appellees
(App. Br., p. 9) rely on footnote 4 at page 454 of Williams, which reads in pertinent
part:
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.”, citing, Quigg, 814 F.3d at 1325.
Williams, 777 Fed. App’x. at 454 n. 4.
That is not what Quigg said. Williams erroneously “graphed” McDonnell
Douglas and Lockheed-Martin onto the above quotation in Quigg.
8
This is precisely why Quigg was a case of first impression. The McDonnell
Douglas/convincing mosaic theories relate to what kind of evidence can support an
inference of discrimination, whereas the single motive/mixed motive dichotomy
deals with causation. Quigg, 814 F.3d n. 4, 1235.
9
Since Quigg was not en banc, this Court’s prior panel decision in Lockheed-
Martin controls. United States v. Billings, 2020 WL 5870245, at *1 (11th Cir. Oct.
2, 2020); Monaghan v. Worldpay US, Inc., 955 F.3d 855, 862 (11th Cir. 2020).
15
POINT II
APPELLEES DO NOT REFUTE THE EVIDENCE
DEMONSTRATING CAPE’S AND BRANNEN’S RACISM
In Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 605 (11th Cir. 1994) this
Court rejected the same syllogism argument that Appellees make here. (App. Br. p.
27). Appellees argue that even if Brannen was racist, this does not mean that he
was racist with respect to Blash or regarding a workplace issue. But in Cooper-
Houston, this Court held that the District Court usurped the proper role of the fact
finder in a race discrimination termination case when despite evidence of general
racial attitudes by the decision maker it concluded there “was no evidence that the
chief's general attitudes played a part in the decision”.
The District Court itself acknowledged the “thick, dense record. . .of
. . .racially-charged issues” in this case. (R. 101, p. 1). Appellees concede the
“. . .evidence that Brannen made racist statements. . .”. (Appellees Br., p. 2). The
evidence of Brannen’s racism included numerous references to his “Nigger”
remarks, his statements that he would not believe anything a “Nigger” had to say,
as well as Brays testimony going to Brannen’s reputation for abusing black
civilians. 10
Testimony regarding Brannen’s abuse of black civilians goes to his reputation

10
and is an exception to the hearsay rule. Fed. R. Evid. 803(21).

16
Appellees argument that Brannen’s racism did not involve “hiring or firing”
(App. Br. p. 43) is belied by the evidence that Brannen made personnel decisions
by reference to race. Taylor testified Brannen staffed shifts by reference to race and
said there were too many blacks on a shift. (Taylor Dec. R. 70-18, ¶¶22, 23).
With respect to Cape, the testimony by Lucious Bray, Anthony Taylor, and
Eddie Nieves is undisputed, and Appellees fail to respond to this testimony in their
Statement of the Facts. Bray, Taylor and Nieves all testified to separate and
numerous instances where Brannen’s blatant racism was exhibited in front of Cape
discussed with Cape and objected to in front of Cape, in many different contexts,
including “on the job”, and that both Cape (and Freemont) just laughed along with
Brannen’s derogatory “Nigger” remarks. (Bray Dec. R. 70-17, ¶¶5-13; Taylor Dec.
R. 70-18, ¶30; Nieves Dec. R. 73-1, ¶¶16, 17). Appellees do not refute Nieves’
testimony about the call that he, Brannen, Cape and Freemont responded to, during
which Brannen said that “did not believe anything that ‘dumbass Nigger’ was
trying to tell him”, that Nieves objected to this blatant racism, and that Cape and
Freemont just laughed. (Nieves Dec. R.73-1, ¶17).
In fact, a reasonable inference is that the Sheriff’s Department was
controlled by three white men, Cape, Freemont and Brannen, who shared the same
basic view which reduces to, “who’s going to believe some dumbass Nigger
anyway”.
17
It is salient that Cape was allegedly “briefed” by Freemont – who is
Caucasian –instead of McGriff – who is African American, who was on the Task
Force, and who would have told Cape that the investigation was over, was not
compromised, and that Orta was never a suspect.
This Court has recently observed, “[r]acism in policing is a particularly
brutal facet of our country’s mistreatment of Black people.” Mahoney v. Owens,
818 Fed. App'x at 899. Certainly, Bray’s multiple conversations with Cape about
Brannen’s racism put Cape on notice to this serious issue. Bray’s testimony that
despite these conversations with Cape “nothing changed” aligns with Taylor’s
testimony that he also discussed Brannen’s racism with Cape, and that Cape just
made excuses for it. (Bray Dec. R. 70-17, ¶¶5-13; Taylor Dec. R. 70-18, ¶30).
A fact finder could reasonably infer that Cape shared Brannen’s view about
not believing anything “a dumbass Nigger” says, in light of the evidence that Blash
did not interfere with any investigation, that McGriff established that the ostensible
investigation was over, before Blash spoke to Orta, and that Cape refused Blash’s
request for a GBI investigation when according to Anthony Taylor, GBI
investigations were routinely done whenever a Sheriff’s deputy was accused of any
infraction.
Instead of responding to Blash’s argument that the evidence supports a
reasonable inference of Cape’s own racism, they urge a counter inference based on
18
a single example of Cape’s disciplining Brannen regarding an incident with
Anthony Taylor; but there is no evidence that this discipline was to correct
Brannen’s racism. The unrefuted evidence is that Cape made excuses for
Brannen’s racism and that nothing changed, which the District Court was required
to accept as true. The fact that Anthony Taylor was involved in the incident in
which Brannen was disciplined, and that Taylor is African American does not
repudiate the reasonable inference that Cape was simply part of a “good ole white
boy” power structure in the Sheriff’s Office. Whether or not Cape himself was
racist, is clearly a disputed issue of material fact.
POINT III
HEARSAY TESTIMONY CANNOT
COVER UP THE ABSENCE OF AN ARTICULATION
The “white elephant in the room” is the absence of any testimony from the
decision maker as to why Blash was fired. It is not “cynical” (App. Br. p.15) for
Blash to require that the articulation be made by competent, admissible evidence,
which is black letter law. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
255 (1981). 11
Appellees’ counsel’s unique insight into Cape’s medical condition should have
11
impelled Appellees to preserve his testimony.

19
1. Appellees concede that hearsay testimony must be “otherwise admissible”
Appellees failed to respond to and thus concede Blash’s argument (Blash
Br., pp. 43-44) that under this Court’s decision in Macuba v. DeBoer, 193 F.3d
1316, 1322-1325 (11th Cir. 1999), hearsay testimony may only be considered on a
motion for summary judgment if the hearsay testimony could be reduced to
admissible evidence at trial and if the testimony is “otherwise admissible.”
While the District Court based its decision on the fact that Orta, Howard,
Arrington, Williams and Freemont could testify at a trial (R. 101, p. 12), their
testimony at trial would need to be “otherwise admissible”, i.e., not hearsay. Each
step in the “telephone game” of Howard talking to Arrington talking to Williams
talking to Freemont needs to be analyzed for hearsay, i.e., whether it is an out of
court statement offered for the truth of the statement. Appellees failed to
demonstrate how, if Freemont testified at trial, his testimony as to what Williams
told him would be admissible; how, if Williams testified at trial, his testimony as to
what Arrington told him would be admissible; and how, if Arrington testified at a
trial, his testimony as to what Howard told him would be admissible. Williams’
affidavit is clear that his testimony would only be what Arrington told him; that
Freemont could only testify as to what Williams told him; and that Arrington could
only testify as to what Howard told him.
20
2. Appellees Did Not Argue Fed.R.Evid. 803(3) to the District Court
For the first time on this appeal, Appellees argue that Fed.R. Evid 803(3) –
state of mind exception to the hearsay rule – applies; but they never made that
argument to the District Court. Rather, Appellees told the District Court that they
were relying upon Fed. R. Evid. 803(1) –present sense impression exception to the
hearsay rule. (R. 74, p. 2). This Court has repeatedly held that it will not consider
arguments raised for the first time on appeal. Timson v. Sampson, 518 F.3d 870,
874 (11th Cir. 2008).
3. Williams’ Testimony
Williams (R. 64-3) purports to recount what Arrington said to him, about
what Howard said to Arrington, about what Orta said to Howard; hearsay upon
hearsay upon hearsay. Appellees argue (App. Br., p. 21) that “Williams’ testimony
is not hearsay” because it “. . . is relevant . . .” but relevance is not the issue.
Appellees argue (Id.) that Williams’ testimony as to what Arrington said to him is
admissible because it is offered solely for its effect on the listener, Williams, but he
was not the decision maker. “Before a statement can be admitted under Rule
803(3) to show the declarant's then existing state of mind, the declarant's state of
mind must be a relevant issue.” T. Harris Young & Assocs., Inc. v. Marquette
21
Elecs., Inc., 931 F.2d 816, 828 (11th Cir. 1991), citing, Prather v. Prather, 650
F.2d 88, 90 (5th Cir. Unit A July 1981).12
Appellees’ reliance on Eaves v. Work Force Central Florida, 623 Fed.
App’x. 955, 960 (11th Cir. 2015) is misplaced because there the out of court
testimony was admissible to establish its effect on the decision maker. In Eaves,
Kevin Neal, defendant’s CEO, fired the plaintiff because Willie Cooper,
defendant’s EEO Officer, told Neal that the plaintiff had been engaged in
dangerous behavior. Neal’s testimony regarding what Cooper told him was
admissible because it was offered to show its effect on the decision maker, Neal.
Here, Williams was not the decision maker, so the effect of Arrington’s statements
upon Williams is irrelevant. Also, in Eaves, Neal gave affidavit testimony, and
here there is no testimony at all from Cape.
Appellees argue (App. Br., p. 21) that “Williams has personal knowledge of
what he was told by Arrington . . . ” but that makes no sense. According to
Williams’ affidavit, Arrington told him (Williams) what Howard had told
Arrington (and what Orta had told Howard). Williams did not have any knowledge
of what Howard told Arrington; it’s hearsay. Appellees mistakenly use the term
“personal knowledge” to characterize what someone was told, but “personal
Prather v. Prather is binding law in this Circuit. Bonner v. City of Prichard,

12
Ala., 661 F.2d 1206 (11th Cir. 1981).
22
knowledge” means the person giving the testimony personally saw or observed the
substance of what is being communicated. Similarly, Appellees misuse the term
“personal knowledge” by arguing (Id.) that “Brannen, in turn, had personal
knowledge of what Williams told Freemont.” But Brannen did not have any
personal knowledge: he knew only that he was told something.
4. Brannen’s Testimony re Freemont 13
Under Macuba v. DeBoer, Brannen’s testimony and interrogatory response
that “Freemont briefed Cape” that “Blash had interfered with a pending federal
investigation by providing information about the investigation to one of the
suspects under investigation”14 is inadmissible because whatever Freemont told to
Cape, can only be based upon what Williams told him, which as shown above is
inadmissible hearsay. Appellees’ untimely reliance on FRE 803(3), to prove
Cape’s “state of mind” is also precluded by that rule which excludes any
“statement of memory or belief to prove the fact remembered or believed” unless it
relates to a will. Appellees cannot rely on 803(3) to prove what Cape believed:
. . . we have explained that the purpose of the exclusion

from Rule 803(3) admissibility is “to narrowly limit
those admissible statements to declarations of
condition—‘I'm scared’—and not belief—‘I'm scared
because [someone] threatened me.’ ” (citation omitted)
(Emphasis added).
See Footnote 3.
13
McGriff testified that Orta was never a person of interest or suspect. (McGriff
14
Dec. R. 70-16, ¶17).

23
United States v. Samaniego, 345 F.3d 1280, 1282 (11th Cir. 2003).
While Appellees now seek to rely upon Brannen’s testimony (App. Br., pp.
16-18), the District Court based its finding that “Major Freemont . . . briefed
Cape” on Jay Williams’ affidavit. (R. 101, pp. 10-13). But as pointed out in
Blash’s main brief, Williams’ affidavit contains no statement about anyone telling
Cape anything.
5. Brannen’s testimony about what Cape said
The District Court sustained Blash’s hearsay objections to any words
allegedly spoken by Cape. (R. 101, p.10). Appellees’ failure to cross appeal from
that ruling precludes them from making or this Court from considering their
argument at p. 18 of their brief regarding Cape’s statements to Brannen or
Brannen’s testimony about what Cape allegedly said to Blash. Whetstone Candy
Co. v. Kraft Foods, Inc., 351 F.3d 1067, 1079–80 (11th Cir. 2003) (11th Circuit has
no jurisdiction to consider issue not raised by party expressly indicating its intent
to appeal issue). Thus, Appellees’ “Statement of Fact” that “Cape told Brannen
that he was going to fire Blash because Blash had interfered with a federal
investigation ” (App. Br., p. 5) and their argument at pages 18 and 20 that “Cape
told Blash that he was being terminated for interfering with a federal investigation.
. .” misstates the record because it was stricken by the District Court. Appellees
cannot properly argue “contrary to . . . the District Court’s ruling” (App. Br, p. 18),
24
and their reference to what Cape allegedly said to Brannen and to Blash (Id.)
should not be in a Statement of the Facts or misleadingly argued to this Court in
their argument:15
Let us reiterate at the outset that we expect the lawyers

and litigants who appear before us to account for
procedural posture and settled standards of appellate
review. A party who prevails on a motion to dismiss or a
summary-judgment motion is certainly free to alert us to
his disagreement with his opponent's factual recitation.
But when it comes to arguing the merits, he should not—
may not—rely on his own factual story. Rather, he
should—must—accept his opponent's story and convince
us that he is nonetheless entitled to prevail as a matter of
law.
Patel v. Lanier Cty. Georgia, 969 F.3d 1173, 1179 n. 1 (11th Cir. 2020).
6. This Court may not draw inferences in Appellees’ favor to compensate

for inadmissible hearsay
Appellees’ argument (App. Br., pp. 19 – 21) that “circumstances”
“suggest[]that [Blash] was fired for interference with the postal investigation”
improperly seeks to have this Court draw inferences in their favor to make up for
15
Other than Brannen’s inadmissible hearsay deposition testimony and
interrogatory responses, there is no record evidence to establish any reason by
Cape. Appellees citation to R. 70-13 is misleading since that document is just a
letter from the EEOC and there is no ¶13 in it. If Appellees meant to cite Blash’s
Declaration R. 70-15, ¶13 states only that Cape told Blash he (Blash) had a choice
of immediate resignation or termination and does not state anything about Cape
telling Blash the ostensible reason for the termination.
25
the fact that they cannot make an articulation for Blash’s discharge by competent,
admissible evidence.
Confronted by the rule against hearsay, Appellees changed their reliance
from FRE 803(1) at the District Court, to FRE 803(3) here; they now for the first
time argue that Freemont along with Cape was a decision maker even though they
never said that to the District Court; they seek to anchor testimony about what
Cape said on Brannen’s testimony even though the District Court improperly relied
on Williams’ testimony; they fail to respond to Blash’s argument that the District
Court improperly surmised Cape’s unarticulated reason for the discharge based on
its erroneous reliance on Williams’ affidavit; they argue against the District
Court’s ruling precluding as inadmissible hearsay any testimony about what Cape
allegedly said even though they failed to cross-appeal from that ruling; and – as a
desperate and improper backstop – now seek to have this Court consider what the
evidence purportedly “suggests” in order to get around the hearsay rule.
7. Blash’s Complaint Does not Constitute Any Judicial Admission
The District Court clearly stated that allegations in a complaint are not
evidence” (R. 101, p.32, n.12), which finding Appellees have not challenged via
any cross- appeal, precluding this Court from considering Appellees’ judicial
admissions argument. Whetstone Candy Co. v. Kraft Foods, Inc., supra.
26
Appellees cite no case establishing that an alleged “judicial admission” can
substitute for the absence of evidence of an employer’s articulation. Best Canvas
Products & Supplies v. Ploof Truck Lines, 713 F.2d 618 (11th Cir. 1983) is
inapposite because there Ploof, the defendant, merely admitted the pleading in the
complaint that the sale of goods occurred in Georgia for purposes of choice of law.
Nothing in the Amended Complaint amounts to Blash’s deliberate and
voluntary waiver expressly conceding for purposes of trial the truth of the
purported reason for his termination. United States v. Belculfine, 527 F.2d 941, 944
(1st Cir. 1975). “[F]acts judicially admitted are facts established not only beyond
the need of evidence to prove them, but beyond the power of evidence to
controvert them” Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1178 (11th Cir.
2009). A judicial admission is a formal deliberate declaration whose purpose is to
dispense with the need to offer proof on facts about which there is no real dispute.
Roger Miller Music, Inc. v. Sony/ATV Publ'g, LLC, 477 F.3d 383, 394 (6th Cir.
2007); Animal Care Sys., Inc. v. Hydropac/Lab Prod., Inc., 2015 WL 1469513, at
*5 (D. Colo. Mar. 26, 2015).
The reasons for Blash’s termination are hotly disputed and Blash clearly
alleged in his complaint that it was racially motivated. Appellees’ argument
essentially means that a discrimination complaint would substitute for an
employer’s competent evidence establishing the reason for its action and preclude
27
an employee from demonstrating its falsity. Plainly neither is the case. Certainly, at
any trial, nonevidentiary allegations in a complaint could not cure the absence of
actual testimony from the decisionmaker as to the reason for the discharge.
Appellees reliance on ¶22 alleged on “information and belief” is unavailing
since allegations on “information and belief” are not judicial admissions.
Deerpoint Grp., Inc. v. Agrigenix, LLC, 345 F. Supp. 3d 1207, 1232 (E.D. Cal.
2018); Corinth Inv'rs Holdings v. Evanston Ins. Co., 2014 WL 4222168, *2 n.1
(E.D. Tex. Aug. 24, 2014).
Appellees for the first time refer to ¶23 of the Amended Complaint, but they
did not make this argument to the District Court. This Court does not consider
arguments raised for the first time on appeal. Timson, 518 F.3d at 874. ¶23 does
not plead anything about what Cape said to Blash; it only pleads the reason he was
given. There is no pleading that the reason was given to Blash by Cape.
Moreover, Appellees denied in their Answer the specific allegations in the
paragraphs of the complaint they argue to this Court constitute an alleged judicial
admission of the absent articulation. Appellees not only denied these allegations,
but set forth their own explanation that “Plaintiff was terminated based on the
findings and conclusion of an independent law enforcement agency” (Answers, R.
59, 60 ¶21) which was the purported USPS investigation. (Id., ¶22). But just as
there is no evidence of Cape’s actual reason, there is also no admissible record
28
evidence of any USPS investigation, and Appellees abandon this reason. The
indictment which came after Blash’s termination, and therefore could not be its
basis, was dismissed.
POINT IV
APPELLEES CANNOT REFUTE BLASH’S MOSAIC
Appellees do not deny McGriff’s, Taylor’s or Nieves’ testimony establishing
many of the “tiles” in the mosaic of circumstantial evidence supporting an
inference of discrimination which consisted inter alia of Blash’s testimony that he
did not know about any federal investigation, McGriff’s extensive testimony that
Blash never knew about the investigation, that the investigation was over before
Blash spoke to Orta at the end of November 2014, that Orta was never a person of
interest, that Blash did nothing wrong, that it is common practice for officers in the
Sheriff’s Office to tell civilians to stay away from someone considered
problematic, and that GBI investigations were routine for deputies accused of
infractions. (Blash Br. 28-39, 52, 54-61).
Appellees ignore that the District Court was required to accept as true
McGriff’s testimony that “once Ms. Howard was arrested that the investigation
was over.” (R. 70-16, ¶18). In contravention of this Circuit’s clear instruction in
Patel, Appellees continue to insist that the alleged investigation was ongoing.
Neither the Amended Complaint (R. 58) nor Blash’s Declaration (R. 70-15) state
anywhere that Ms. Howard became “a cooperating witness”, and Blash’s

29
Declaration controverts this. (Blash Declaration, R.70-15, ¶7). Williams’
Declaration, (R.64-3, ¶11) was squarely disputed by McGriff’s Declaration (R. 70-
16, ¶18), and McGriff’s testimony had to be taken as true.
Appellees ignore Blash’s further argument (Blash Br. pp. 55-56, 58-59) that
the District Court improperly collapsed the timeline. Appellees correctly state
(App. Br., p. 3) that Orta approached Blash in the Spring or Summer of 2014 about
Renee Howard asking him (Orta) about his pain medication, citing Blash
Declaration, (R. 70-15, ¶4) but state in the next sentence: “[a]lso in 2014 . . .” the
USPS investigation was ongoing. But the USPS investigation did not commence
until the fall of 2014 and was over when Howard was arrested before Blash spoke
to Orta. Appellees’ ignore Blash’s argument (Blash Br. 58-59) that the District
Court got its timeline wrong when it wrote that Howard was under surveillance
“around that time” indicating the late spring or early summer of 2014, when the
very evidence it relied on, Williams affidavit (R. 64-3, ¶4), clearly stated that the
investigation was in the fall of 2014. Rather, Appellees are misleading in
suggesting that Orta’s comment to Blash (in the spring of 2014) occurred around
the time of the USPS investigation, which is clearly belied by the record.
Appellees also cannot tell a consistent story. They argued to the District
Court that Cape alone made the termination decision and now argue to this Court
that Cape and Freemont made the termination decision. Appellees’ so-called
30
“articulation” also has migrated from terminating Blash for interfering with a
federal investigation allegedly based on the postal service investigation, to the fact
that Blash was indicted for interfering with a federal investigation, to merely an
argument that Cape fired Blash because of his “inappropriate” conversation with
Orta. (App. Br. p. 36). But the alleged postal service investigation is inadmissible
hearsay, does not identify any author and is unsigned, and that justification has
been abandoned by Appellees.
In their Statement of Facts (Id. p. 2) and their argument at page 20,
Appellees argue that Blash was subsequently indicted for the conduct that
ostensibly led to his termination. But the indictment was nul prossed, supporting
Blash’s argument that the allegation that he interfered with a federal investigation
is bogus. Appellees’ statement that “. . . there is no evidence in the record as to
why [the indictment] [was] dropped” (Id., n.1, p.2), ignores the reasonable and
required inference in favor of Blash that the indictment was dropped because it was
baseless.
Nieves, Taylor, McGriff and Blash all provided testimony that Blash’s
talking to Orta was consistent with common practice in the Sheriffs’ Office,
undermining Appellees’ most recent and last resort argument that Cape fired
Blash because his conversation with Orta was “inappropriate”. (Id., p.36). All
Blash was required to do, which he did, was to produce evidence sufficient to
31
create a genuine factual issue with respect to the truthfulness of Appellee’s
proffered explanation. Combs v. Plantation Patterns, 106 F.3d 1519, 1530–38
(11th Cir. 1997).
1. Appellees’ “Pretext Plus” Argument at pp. 21-22 is Just Plain Wrong
It is settled law that demonstration of pretext allows a jury to infer the
ultimate issue of race discrimination, so that Blash is not required to show both
pretext “. . . and that discrimination was the true reason . . .” Reeves v. Sanderson
Plumbing Prod., Inc., 530 U.S. 133, 148 (2000). Howard v. Hyundai Motor
Manufacturing Alabama, 754 Fed. App’x. 622 (11th Cir. 2018) held only that the
plaintiff had failed to show pretext, and any dicta requiring “pretext plus” is both
erroneous and not binding. Howard relies upon Smith v. Lockheed-Martin, but
only for language that the showing of pretext merges into the ultimate issue of
discrimination. Crawford v. City of Fairburn, 482 F.3d 1305 (11th Cir. 2007)
similarly held only that the plaintiff has failed to demonstrate pretext. Both cases
were decided solely under McDonnell Douglas without any discussion of a mosaic
of circumstantial evidence under Smith v. Lockheed-Martin. In any event, as
discussed above the record here depicts both pretextuality and racist animus.
32
2. The Elrod16 “Good Faith” Argument Does not Apply
The problem with Appellees’ Elrod argument (App. Br. 22-24) is that there
is no evidence of what Cape actually knew or believed because there is no
testimony from him. Appellees are unable and would be unable at a trial to
establish Cape’s belief, good faith or otherwise. See e.g. Stone & Webster Const.,
Inc. v. U.S. Dep't of Labor, 684 F.3d 1127, 1136 (11th Cir. 2012) (Applying Elrod,
Court found that ALJ credited decisionmaker’s testimony regarding his
reason)(emphasis added); Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F. 3d
1121, 1149 (11th Cir. 2020) (“There is no evidence in this record to rebut [the
decisionmaker’s] repeated and insistent testimony that he believed Gogel had
recruited Ledbetter to sue the company”)(emphasis added).
3. Systematic Better Treatment of Caucasians
Appellees do not question that Blash, African American, was disciplined
more severely than Caucasian Deputies Peavy and White, who were accused of the
more serious offence of using excessive force in an arrest. Relying on Flowers v.
Troup County, Ga., School District, 803 F.3d 1327 (11th Cir. 2015), Appellees
argue that Peavy and White are not comparators because the offence of which they
Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991).
16
33
were accused was more serious, but Appellees’ reliance on Flowers is misplaced
since it used the outdated “nearly identical” standard for comparators which was
abrogated in Lewis v. City of Union City, Georgia, [Lewis II ], 934 F.3d 1169 (11th
Cir. 2019).
Even if Peavy and White are not comparators, this Court held in Lockheed-
Martin that a plaintiff who cannot demonstrate the existence of comparators may
still avoid summary judgment where, as here, “[t]he evidence . . . shows that
Lockheed . . . discipline[d] white employees more harshly than black employees . .
.” Smith v. Lockheed-Martin Corp., 644 F.3d at 1341. See also, Lewis II, 934 F.3d
at 1187.
Both the District Court and Appellees acknowledge that Blash was treated
differently than Caucasian Deputies regarding using a patrol car, but discount this
showing of differential treatment on the meaningless distinction that Blash did not
file an EEOC charge about it. Appellees’ argument that this differential treatment
did not involve termination (App. Br. 34) is unavailing since it supports systemic
discrimination in discipline, which was further corroborated by Anthony Taylor’s
testimony regarding routine use of GBI investigations for Caucasian officers.
(Taylor Dec. R. 70-18, ¶¶22, 23) Cooper-Houston, 37 F.3d 603, 605 (11th Cir.
1994) (in race-based termination case evidence of differential treatment included
34
evidence that Plaintiff was treated less favorably than white co-workers regarding
other aspects of employment)
POINT V
APPELLEES’ FAIL TO REFUTE BOSTOCK’S 17 INSTRUCTION
THAT “BUT FOR” OR “BECAUSE OF” UNDER TITLE VII
MEANS PLAYED ANY PART
Appellees’ unsupported argument that Bostock did not intend to undo
established case law is undermined by Justice Gorsuch’s elaboration on the long
history of Supreme Court cases supporting his causation statements. Here, a jury
could conclude that race played a part in the termination decision. Even if
Appellees disagree with Justice Gorsuch, Blash gets to a jury under the “more
forgiving” “motivating factor” standard, even if race “wasn’t a but for cause” of
his termination. Bostock, 140 S.Ct at 1739-40.
POINT VI
AN “INFLUENTIAL” RACIST IS LIKELY TO INFLUENCE
A TERMINATION DECISION BASED ON HIS RACIAL ANIMUS
Appellees admit that Brannen was “influential” in the Sheriff’s Office when
Cape was the Sheriff (App. Br. p.2) that he is a racist (Id.), and that he was present
at the meeting when the decision to terminate Blash was made. (Id., p. 4).
Appellees seek to avoid the reasonable inference that Brannen’s racism affected
the termination decision by relying on Brannen’s self-serving deposition testimony
17
Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020).
35
that he did not say anything during that meeting. (Id., p. 5). But that is
contradicted by the Appellees’ Undisputed Fact that Brannen met with Cape “. . .
to discuss Plaintiff’s [Blash’s] fate.” (R. 64-2, ¶26) (emphasis added).
It is a reasonable inference that when Brannen avers that he met with Cape
“to discuss” Blash’s “fate”, that he [Brannen] in fact discussed it and the District
Court was required to draw that reasonable inference in Blash’s favor. Any
argument that meeting “to discuss Blash’s fate” does not mean what it says, is one
Appellees need to make at a trial. It is counterintuitive to assume that Brannen
“checked his racism at the door” when entering the meeting “. . . to discuss
[Blash’s] fate”, and there is no record evidence at all that Cape or anybody took
any steps to ensure that Brannen’s racial animus did not affect the termination
decision.
POINT VII
THE DISTRICT COURT IMPROPERLY
DISMISSED BRANNEN INDIVIDUALLY
UNDER §1981(§1983)
Appellees argue that Blash did not raise the absence of any legal distinction
between forced resignation and termination in his response to Brannen’s motion to
dismiss, but Appellees never argued that distinction in their moving papers, so
there was no reason for Blash to respond to an argument that was not made. Blash
responded to the District Court’s sua sponte “distinction” between resignation and
termination. (Blash Br. p. 65).

36
Blash was not required to use magic words in the complaint and state
verbatim that that “Brannen’s insistence was motivated by racial animus” (App.
Br. p.51) (emphasis in original), and Appellees cite no authority for this
proposition. The allegations of derogatory racist statements by Brannen including,
referring to Blash, that he [Brannen] was going “to get that n----”, that Brannen
insisted Blash be terminated, that Blash was terminated on the basis of race, and
that his race played a part in the termination decision was all that was necessary.
Appellees’ argument that the evidence adduced during discovery did not
corroborate Blash’s allegation in the Complaint that Brannen said referring to
Blash that he would “get that n----” is unavailing because under Bell Atlantic Corp.
v. Twombly, the complaint only must allege enough facts to raise a reasonable
expectation that discovery will reveal evidence supporting a claim. Twombly, 550
U.S. 556 (2007). And here discovery revealed extensive evidence of Brannen’s
racism.
POINT VIII
CAPE WAS NOT ENTITLED TO QUALIFIED IMMUNITY
Appellees’ qualified immunity argument regarding Cape falls because Cape
fired Blash and the evidence supports a finding of Cape’s own racism. Appellees’
reliance on Rioux v. City of Atlanta, Ga., 520 F.3d 1269 (11th Cir. 2008) is
misplaced because Rioux and its predecessor, Stanley v. City of Dalton, Ga., 219
F.3d 1280, 1294 (11th Cir.2000) establish that a “defendant is entitled to qualified
37
immunity only where “the record undisputably establishes that the defendant in
fact was motivated, at least in part, by lawful considerations.” Id. at 1296
(emphasis in original); Rioux, 520 F.3d at 1284. Here, there is no evidence that
Cape was motivated by lawful motives: there is no admissible record evidence
about what Cape actually knew or believed because there is no document, no
testimony from Cape, or any other admissible evidence, as the District Court
conceded. (R. 101, p. 42).
CONCLUSION
THIS COURT SHOULD REVERSE THE DISMISSAL OF BLASH’S TITLE VII
CLAIM FOR UNLAWFUL DISCHARGE AND REVERSE THE DISMISSAL
OF BLASH’S §1981/§1983 CLAIMS AGAINST CAPE AND BRANNEN IN
THEIR INDIVIDUAL CAPACITIES
Respectfully submitted, this 28th day of October 2020.
_s/Robert N. Marx_______
Robert N. Marx
Jean Simonoff Marx
Attorneys for Appellant
Marx & Marx, L.L.C.
1050 Crown Pointe Parkway, Ste. 500
Atlanta, GA 30338
Telephone: (404) 261-9559
E-mail: [email protected]
38
Certificate of Compliance with Type-Volume Limit,

Typeface Requirements, and Type-Style Requirements
1. This document complies with the type-volume limit of Fed. R. App.

P. 32(a)(7)(B)(i), excluding the portions excludable from that calculation pursuant
to Fed. R. App. P. 32(f). This document contains 6,495 words, excluding those
portions excludable pursuant to Fed. R. App. P. 32(f).
2. This document complies with the typeface requirements of Fed. R.

App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6)
because this document has been prepared in a proportionally spaced typeface using
Microsoft Office 2007 in Times New Roman 14.
_s/Robert N. Marx_______
Robert N. Marx
Marx & Marx, L.L.C.
1050 Crown Pointe Parkway, Ste. 500
Atlanta, GA 30338
Tel. (404) 261-9559
Email: [email protected]
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the Court
for the United States Court of Appeals for the Eleventh Circuit by using the
appellate CM/ECF system on October 28, 2020.
I certify that the following are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system:
Derrick L. Bingham, Esq.

Owen, Gleaton, Egan, Jones & Sweeney LLP
303 Peachtree Street, NE, Suite 2850
Atlanta, GA 30308
[email protected]
39
Donald Andrew Cronin, Jr., Esq.

103 Keys Ferry Street
McDonough, GA 30253
[email protected]
Atlanta, Georgia
October 28, 2020
s/Robert N. Marx
Marx & Marx, LLC
Suite 500
Telephone: (404) 261-9559
[email protected]
40

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USCA11 Case: 20-10337 Date Filed: 10/28/2020 Page: 1 of 41

UNITED STATES COURT OF APPEALS

WILLIAM CAPE, et al.,

On Appeal from the United States District Court

APPELLANT’S REPLY BRIEF

Robert N. Marx, Esq.

UNITED STATES COURT OF APPEALS

vs. : No. 20-10337-D

WILLIAM CAPE, et al. :

APPELLANT JOHNNY BLASH’S AMENDED

1. Pursuant to Federal Rules of Appellate Procedure and Eleventh Circuit

corporations that have an interest in the outcome of this appeal:

Blash, Johnny, Appellant

Bingham, Derrick L., Attorney for Appellees

Brannen, Danny, Individually and in his Official Capacity as Sheriff, Pulaski

County, Georgia, Appellee

Cape, William B., Executor of the Estate of Billy W. Cape, Appellee

Cronin, Donald Andrew, Jr., Attorney for Appellees

UNITED STATES COURT OF APPEALS

Marx & Marx, LLC, Attorneys for Appellant

Marx, Robert N., Attorney for Appellant

Marx, Jean Simonoff, Attorney for Appellant

O’Quinn & Cronin, LLC, Attorneys for Appellees

Self, Hon. Tilman E., III, U.S. District Court Judge

Marx & Marx, LLC is not publicly held.

Respectfully submitted this 29th day of June 2020.

UNITED STATES COURT OF APPEALS

Donald Andrew Cronin, Jr., Esq. Derrick L. Bingham, Esq.

1. Appellees concede that hearsay testimony must

2. Appellees Did Not Argue Fed.R.Evid. 803(3)

4. Brannen’s Testimony re Freemont…………………………. 23

5. Brannen’s testimony about what Cape said………………… 24

6. This Court may not draw inferences in Appellees’ favor to

7. Blash’s Complaint Does not Constitute Any

Table of Contents (Cont’d.)

1. Appellees’ “Pretext Plus” Argument at pp. 21-22

2. The Elrod “Good Faith” Argument Does not Apply………. 33

3. Systematic Better Treatment of Caucasians………………… 33

Conclusion: This Court Should Reverse the Dismissal of

Bell Atlantic Corp. v. Twombly,

Best Canvas Products & Supplies v. Ploof Truck Lines,

Bonner v. City of Prichard, Ala.,

Bostock v. Clayton County, Georgia,

Bowen v. Manheim Remarketing Inc.,

Combs v. Plantation Patterns,

Cooper v. Meridian Yachts, Ltd.,

Cooper-Houston v. S. Ry. Co.,

Corinth Inv'rs Holdings v. Evanston Ins. Co.,

Crawford v. City of Fairburn,

Deerpoint Grp., Inc. v. Agrigenix, LLC,

Eaves v. Work Force Central Florida,

Table of Citations (Cont’d.)

Flowers v. Troup County, Ga., School District,

Gogel v. Kia Motors Mfg. of Georgia, Inc.,

Heatherly v. Univ. of Alabama Bd. of Trustees,

Howard v. Hyundai Motor Manufacturing Alabama,

Lewis v. City of Union City, Georgia, [Lewis II ],

Mahoney vs. Owens,

McDonnell Douglas Corp. v. Green,