BLASH v. CITY OF HAWKINSVILLE AND PULASKI COUNTY GEORGIA SHERRIF'S OFFICE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

JOHNNY BLASH,

Plaintiff,

v.

CITY OF HAWKINSVILLE AND CIVIL ACTION NO.

PULASKI COUNTY, GEORGIA, 5:17-cv-00380-TES

SHERIFF’S OFFICE; HAWKINSVILLE-

PULASKI COUNTY; BILLY W. CAPE; and

DANNY BRANNEN,

Defendants.

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

This case could easily boast of a thick, dense record, full of thorny and tangled

racially-charged issues. But, when you dispassionately focus on the legal issues, the

critical question the Court must answer really boils down to this: if a local sheriff

suspects one of his deputies has acted improperly (or even criminally), must he provide

that deputy with an independent criminal investigation in order to comply with the

Constitution and Title VII?

The short answer is no.

I. INTRODUCTION

Without getting too detailed early on, Plaintiff, former-Deputy Sheriff Johnny

Blash, allegedly compromised and interfered with the United States Postal Service’s

(“USPS”) investigation into one of its employees suspected of stealing medication from

postal customers. When Former Sheriff and now-deceased Defendant Billy W. Cape

learned of the allegations regarding Blash, he fired him. Now, Blash contends that he

was subjected to a hostile work environment while employed with the Pulaski County

Sheriff’s Office and that his race––not the supposed interference with the USPS

investigation––was the true motivating factor behind Defendant Cape’s refusal to

investigate his alleged misconduct.

Elaborated in more detail in previous Orders, the Court, with Blash’s consent,

dismissed his hostile work environment and race-discrimination claims asserted against

the Pulaski County Sheriff’s Office and Pulaski County, Georgia. [Doc. 100 at p. 8];

[Doc. 37 at pp. 8–11]. Following a lengthy analysis, the Court also previously dismissed

Blash’s hostile work environment claims against Defendant Cape and Defendant Danny

Brannen. [Doc. 37 at pp. 11–26]. Now, only three claims remain: a race-discrimination

claim asserted under 42 U.S.C. § 1981 against Defendant Cape1 in his individual

capacity; and two race-discrimination claims against Defendant Brannen in his official

1 During the pendency of this lawsuit, Defendant Cape died. Following his passing, the Court later

substituted William Brian Cape as the legal representative for the estate of Defendant Billy Cape pursuant

to Federal Rule of Civil Procedure 25. [Doc. 98]; [Doc. 99].

capacity, one asserted under Title VII of the Civil Rights of 1964 and the other asserted

under 42 U.S.C. § 1981.2

When confronted with a defendant’s motion for summary judgment on claims

for race discrimination under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. §

1981, a plaintiff must make a sufficient factual showing to permit a reasonable jury to

rule in his favor. While this can be done in a variety of ways, perhaps the most

familiar—and most apt to this case—is the three-part burden shifting framework

established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). The McDonnell Douglas framework places the initial burden on a plaintiff to

establish a prima facie case of race discrimination by proving that he was treated

differently from some other “similarly situated” individual or “comparator.” Lewis v.

City of Union City, 918 F.3d 1213, 1217 (11th Cir. 2019) (“Lewis I”) (citing Texas Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. 248, 258–59 (1981)).

In arguing that Blash cannot show a valid comparator, Defendants cite to the

recently-abrogated Holifield v. Reno, for the proposition that “[t]o make a comparison of

2 As further explained below, Blash’s Section 1981 claims may only be brought pursuant to Section 1983

given that the alleged violator acted under color of state law. Section 1983 exists to remedy the

“deprivation of any rights, privileges, or immunities secured by the Constitution and laws” and

“provides the exclusive federal damages remedy for the violation of the rights guaranteed by [Section]

1981 when the claim is pressed against a state actor.” Busby v. City of Orlando, 931 F.2d 764, 771 n.6 (11th

Cir. 1991). Stated another way, state actors cannot be sued for constitutional violations outside the

purview of Section 1983. Butts v. County of Volusia, 222 F.3d 891, 894 (11th Cir. 2000). Therefore, the Court

construes Blash’s Section 1981 claims as claims asserted under Section 1983 and not as direct actions

via Section 1981. Therefore, Blash’s Section 1981 claims will be referred to as Section 1983 claims

throughout this Order.

[a] plaintiff’s treatment to that of non-minority employees, [that] plaintiff must show

that he and the employees are similarly situated in all relevant respects.” 115 F.3d 1555,

1562 (11th Cir. 1997) (abrogated by Lewis I, 918 F.3d 1213). However, over a month before

Defendants Cape and Brannen filed their Motion for Summary Judgment [Doc. 64]

applying the Holifield standard, the Eleventh Circuit Court of Appeals decided Lewis I

“[i]n an effort to clean up, and to clarify once and for all” its self-described “mess” with

regard to comparator analyses and answer “[t]he obvious question: Just how ‘similarly

situated’ must a plaintiff and [his] comparator(s) be?” 918 F.3d at 1217–18. In Lewis I, the

Eleventh Circuit Court of Appeals held that “the proper test for evaluating comparator

evidence is neither plain-old ‘same or similar’ nor ‘nearly identical,’ as . . . past cases

have discordantly suggested.” Id. at 1218. Instead, “a plaintiff asserting an intentional-

discrimination claim under McDonnell Douglas must demonstrate that [he] and [his]

proffered comparators were ‘similarly situated in all material respects.’” Id. That being

said, the Court’s comparator analysis relies on the new standard announced in Lewis I.

II. FACTUAL BACKGROUND

Taking all reasonable inferences in Blash’s favor, the facts of this case are as

follows.

Prior to working for Pulaski County, Georgia, Blash worked for the City of

Hawkinsville as a police officer. [Doc. 78, Blash Depo., pp. 31:23—32:1]. In 2010, the City

of Hawkinsville and Pulaski County reached an agreement for the Pulaski County

Sheriff’s Office to hire city police officers. [Id. at p. 32:2–6]. Within his first year of

employment, Blash received positive feedback on his work performance and a

recommendation for a raise. [Doc. 70-8 at pp. 2–3]. On a scale including scores of

“Excellent,” “Good,” “Fair,” and “Poor,” Blash received a score of “Good” for all

categories including, among others, honesty, work quality, cooperation, working

relations, and communication skills. [Id. at p. 2]. However, despite this seemingly

promising review, Defendant Cape fired Blash on December 1, 2014.3 [Doc. 64-2 at ¶ 28].

According to Blash, sometime in late spring or early summer 2014, while on

routine patrol, he spoke to Scott Orta, “a local handyman who[,] from time to time[,]

worked on [his] house.” [Doc. 70-2 at ¶¶ 60–61]. During this conversation, Orta

mentioned to Blash “that a postal driver named Renee [Howard] had been approaching

him about his pain medication.” [Id. at ¶ 61]; [Doc. 70-15 at ¶¶ 4–5]. Around that time,

Renee Howard was under surveillance (ostensibly from the USPS) because she was

suspected of stealing medication from postal customers while carrying out her postal

route. [Doc. 70-2 at ¶¶ 48, 51]; [Doc. 64-3, Williams Aff., ¶ 4]. Then around late October

3 This is the only review of Blash’s employment history in the record. There are no other reviews filed in

the record for subsequent years until his termination.

or November 2014, Chief Investigator Robert McGriff showed Blash a photograph of a

man who Blash identified as Scott Orta.4 [Doc. 70-2 at ¶¶ 47, 53–54]; [Doc. 70-15 at ¶ 5].

On November 23, 2014, supposedly after the conclusion of the USPS

investigation and Renee Howard’s arrest,5 Blash saw Orta while he (Blash) was “on

normal patrol duties” and “motioned for Orta to come speak to him.” [Doc. 70-2 at ¶ 62

(citing [Doc. 70-15, Blash Dec., ¶¶ 6–7])]; [Doc. 11-1 at p. 3]; [Doc. 36]. It was then that

Blash “cautioned [Orta] to ‘stay away from Renee.’” [Doc. 70-2 at ¶ 62]. By Blash’s

account, at the time he warned Orta about Renee Howard, he “was not advised or

aware that there was any ongoing investigation regarding [her].” [Id. at ¶¶ 65–66]; see

also [Doc. 70-15, Blash Dec., ¶ 7]. In fact, Robert McGriff apparently told Blash, “several

weeks before” that “the sting operation was over” because “they ‘got’ Renee.” [Doc. 70-

2 at ¶ 65]; [Doc. 70-15, Blash Dec., ¶ 7]. Based on this, Blash contends that he had no

4 The parties disagree about the context in which this occurred. By Defendants’ account, Blash walked

into the Sheriff’s Office during a “pre-operation briefing” for the post office investigation and saw

“images of subjects of the investigation” on display. Compare [Doc. 64-2 at ¶ 11] with [Doc. 70-1 at ¶ 11].

Upon seeing these images, Blash apparently indicated that he was familiar with one of the photographed

individuals, Scott Orta. [Doc. 64-2 at ¶ 12].

Blash, however, claims that he “was sitting in the station doing paperwork when Chief Investigator

McGriff and individuals [he] recognized as postal investigators entered the station.” [Doc. 70-15 at ¶ 5];

see also [Doc. 70-1 at ¶ 11]. It was then, according to Blash, that Robert McGriff showed him a photograph

and asked Blash if he could identify the individual. [Doc. 70-1 at ¶ 11].

Despite the minimal materiality of this disagreement, the Declaration of Robert McGriff confirms that

McGriff did, in fact, show Blash a photograph of Scott Orta to see whether Blash “knew who th[e]

individual was.” [Doc. 70-16 at ¶ 14].

5 While an arrest record indicating Renee Howard’s date of arrest would have been extremely helpful in

determining whether Blash “interfered” with the USPS investigation, no such record is before the Court

for consideration.

reason to believe that any word of caution to Scott Orta would impact any investigation.

[Doc. 70-2 at ¶ 66]; [Doc. 70-15, Blash Dec., ¶ 7]. However, Blash never explained why

he would tell Orta to stay away from Renee Howard if she had in fact already been

arrested and the criminal investigation had already been concluded.

On December 1, 2014, “[w]hen [Defendant] Cape told Blash that he was being

fired, Blash asked that any termination decision be held in abeyance pending an

investigation by the Georgia Bureau of Investigation (‘GBI’).” [Doc. 70-1 at ¶ 28]; see also

[Doc. 70-2 at ¶ 68]. Presumably, Blash requested a GBI investigation to show that the

USPS investigation was not active when he warned Orta about Renee. See n.5, supra.

These independent investigations are “conducted by a law enforcement agency [that is]

not connected to the Pulsaki County Sheriff’s Office . . . to ensure fairness.” [Doc. 78,

Blash Depo., pp. 41:17—42:2]. For example, when two Caucasian deputies, Chris White

and Jordan Peavy, were accused of using excessive force against an arrestee, they

received a GBI investigation to verify their misconduct before any termination decision

was made. [Doc. 70-2 at ¶¶ 70–71]. “[U]ltimately,” this GBI investigation “cleared them

of the allegations.” [Doc. 78, Blash Depo., p. 41:12–16].

Based on these facts, Blash alleges that Defendant Cape denied him a GBI

investigation because of his race and color. [Doc. 58 at ¶ 6]. The pre-discovery theory of

Blash’s case was that his supervisor (and deputy sheriff), Defendant Brannen, created a

hostile work environment towards African Americans which Defendant Cape, as the

former sheriff, allowed and tolerated. [Id. at ¶ 15, 17–19]. The Court previously

dismissed Blash’s hostile work environment claims brought via 42 U.S.C. § 1981,

because he was unable to allege that Defendant Brannen’s comments or behavior were

so severe or pervasive that they altered the terms and conditions of his employment

and created a discriminatorily abusive working environment. [Doc. 37 at pp. 14–21].

Now, in his Response to Defendants’ summary judgment motion, Blash attempts to fix

this pleading inadequacy by bringing evidence of more racially-charged incidents

involving Defendant Brannen that he uncovered during discovery. See [Doc. 70 at pp. 2–

5]; see also [Doc. 70-2 at ¶¶ 14–28, 32–34].

As more fully explained in the Court’s Order Denying Plaintiff’s Motion for

Reconsideration, these new allegations should have been included in a Second

Amended Complaint in order for the Court to consider them. See generally [Doc. 100].

However, Blash did not attempt to file such a complaint, and the parties appear to—at

the summary judgment stage—affix a new theory to this case. Blash now contends that

the lack of a formal investigation before his termination indicates that he was fired for a

pretextual reason, concocted by Defendants to cover up Defendant Cape’s racial animus

behind the decision. See [Doc. 70-1 at ¶ 31]. Essentially, Blash maintains that his

termination was “based upon . . . bogus allegations” with respect to his involvement

with the USPS investigation, because the investigation “had already . . . concluded” at

the time he told Orta to stay away from Renee. [Doc. 58 at ¶¶ 23, 38]; [Doc. 70-2 at ¶

64].6

In addition to Blash’s claim that his termination was for “bogus” reasons, he

asserts that it was common practice for officers to warn citizens “with whom they were

familiar” about associating with suspected persons. [Doc. 70-2 at ¶¶ 62–63]; [Doc. 58 at

¶ 24]. At any rate, Blash’s entire case is premised on the contention that he was

discriminatorily denied a GBI investigation that could have shown that the reason given

for his termination was “bogus,” and that he, in fact, “did not do anything wrong.”

[Doc. 58 at ¶¶ 35–38]; [Doc. 70-16, McGriff Dec., ¶ 20].

III. EVIDENTIARY OBJECTIONS

Before turning to the summary judgment motion, the Court must resolve Blash’s

numerous hearsay-based objections to Defendant Brannen’s deposition, his

interrogatory responses, and the Affidavit of Jay Williams [Doc. 64-3]. [Doc. 79]. “The

general rule is that inadmissible hearsay cannot be considered on a motion for summary

judgment.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1293 (11th Cir. 2012) (quoting

Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir.1999)). However, “a district court may

consider a hearsay statement in passing on a motion for summary judgment if the

6 The Court notes a Pulaski County Grand Jury returned an Indictment charging Blash with Violation of

Oath by Public Officer and Obstruction of an Officer. [Doc. 11-1 at p. 3]. However, the Superior Court of

Pulaski County nolle prossed these charges on September 18, 2017. [Id. at p. 4]; [Doc. 36].

statement could be reduced to admissible evidence at trial or reduced to admissible

form.” Id. at 1293–94 (quoting Macuba, 193 F.3d at 1323); see also Fed. R. Evid. 801.

But, as noted earlier in the record, Defendant Cape died during the pendency of

this litigation, and neither side obtained any testimony from him. [Doc. 88]; [Doc. 98];

[Doc. 99]. Therefore, to the extent any testimony is predicted on words allegedly spoken

by Defendant Cape, the Court SUSTAINS Blash’s hearsay objections so that the Court

will not consider any such statements.

However, the Court OVERRULES any objection related to the Affidavit of Jay

Williams. [Doc. 64-3]. Jay Williams worked as a deputy sheriff in Pulaski County at all

relevant times for this case, and for a portion of that employment he received an

assignment to work with the Oconee Drug Task Force. Jay Williams’ affidavit provides

an account of the events surrounding this case and his assistance to the USPS in

connection with its investigation of Renee Howard.

Blash argues that Federal Rule of Evidence 602 “provides in pertinent part that

‘[a] witness may not testify to a matter unless evidence is introduced sufficient to

support a finding that the witness has personal knowledge of the matter.” [Doc. 79 at p.

2 (citing Fed. R. Evid. 602)]. Regarding Jay Williams’ affidavit, Blash objects to the

following statements on the basis that they are largely based on inadmissible hearsay:

Paragraph 10: “After the pre-operation briefing, Agent Arrington contacted

[Jay Williams] and stated that the postal investigation may be

compromised[,] because its existence had been leaked to Scott Orta.”

Paragraph 11: “Agent Arrington advised [Jay Williams] that the female

postal worker reported receiving a call from Scott Orta. By this time, the

female postal worker had agreed to be a cooperating witness.”

Paragraph 12: “Agent Arrington further advised [Jay Williams] that

according to the female postal worker, Orta communicated to her that an

unnamed Pulaski County [d]eputy advised Orta to stay away from the

female postal worker.”

Paragraph 13: “Agent Arrington indicated that the female postal worker

was worried about her safety[,] because she had been assured that her role

as a cooperating witness would remain secret.”

Paragraph 15: “After learning of the leak, Agent Arrington and [Jay

Williams] interviewed Scott Orta. During that interview, Orta

communicated that Deputy Blash saw him at a grocery store and directed

Orta to follow him to a baseball field in town.”

Paragraph 16: “During his interview, Orta relayed that when he arrived at

the baseball field, Blash told him that he needed to pay attention to what

was going on around him.”

Paragraph 17: “Orta further revealed during the interview that when he

asked Blash what he meant, Blash responded by stating ‘Renee,’ which was

the first name of the female postal worker.”

Paragraph 18: “Orta confirmed during the interview that he called the

female postal worker after his conversation with Blash.”

Paragraph 19: “Upon learning about Blash’s conduct, Agent Arrington told

[Jay Williams] that either [Jay Williams] would advise [his] superiors of

Blash’s conduct or Arrington would ‘handle it.’ In response, [Jay Williams]

advised Agent Arrington that [Jay Williams] preferred to bring Blash’s

conduct to the attention of [Jay Williams’] supervisor at the Pulaski County

Sheriff’s Office, Major Freemont.”

Paragraph 20: “Shortly thereafter, [Jay Williams] briefed Major Freemont

that Blash had compromised the postal investigation. In particular, [Jay

Williams] communicated that Blash had revealed the existence of the

investigation to a suspect who, in turn, advised the female postal worker

that a Pulaski County [d]eputy warned the suspect to stay away from her.”

Paragraph 21: “[Jay Williams] also communicated to Major Freemont that

the female postal worker communicated to Agent Arrington that the

conversation with the suspect made her nervous about being a cooperating

witness.”

Paragraph 22: “While briefing Major Freemont, [Jay Williams] expressed

[his] opinion that Blash potentially compromised the safety of the female

postal worker as the suspect could have flipped and harmed her.”

Paragraph 23: “[Jay Williams] also communicated to Major Freemont that

Agent Arrington advised [Jay Williams] that the USPS would ‘handle’ Blash

if the Pulaski County Sheriff’s Office did not take internal action.”

[Doc. 64-3 at ¶¶ 10–13, 15–18, 20–23]; [Doc. 79 at pp. 14–16]. However, none of these

statements are made by declarants who are, to the Court’s knowledge, unavailable; and

if necessary, Jay Williams could testify as to what he said, as could both Scott Orta,

Agent Jarrett Arrington, and Major Jason7 Freemont.

In the end though, none of these hearsay-based arguments even matter. It

doesn’t matter what was said in each of these comments, because yes, they may very

well constitute hearsay if they cannot be reduced to admissible form. See Fed. R. Civ. P.

56(c)(2). Who said what to whom, and how whatever was said ultimately landed on

Defendant Cape’s ears is irrelevant. Certainly, a factual statement that someone spoke

to another person is not hearsay. Hearsay goes one step further and looks to the

contents of what was said in that statement. So, the Court can undoubtedly conclude that

7 [Doc. 72-1, Brannen Depo., p. 29:2 (providing Major Freemont’s first name)].

somehow, something––through a conduit of what seems to be three different people––

made its way to Defendant Cape. What it is, we don’t know and it’s irrelevant, because

Defendant Cape made the decision to terminate Blash. Even omitting this convoluted,

and ultimately useless evidence, this chain of communication provides no help in

resolving the race-discrimination issue before the Court. At the end of the day, Blash

must prove that Defendant Cape fired him because he is black.

Blash seems to be of the impression that “Defendants[ ] fail[ed] to preserve

[Defendant] Cape’s testimony while he was still alive.” [Doc. 79 at p. 11]. Regardless of

which side needed Defendant Cape’s testimony––no one obtained any testimony from

Defendant Cape. If neither side thought it important, they’re clearly mistaken. While

death is––sometimes––the most unpredictable and unexpected thing a person can

encounter, there are procedural mechanisms8 in place to preserve such critical

testimony. However, no one utilized them in this case.

IV. DISCUSSION

A. Standard of Review

A court must grant summary judgment “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

8 Federal Rule of Civil Procedure 27 permits “[a] person who wants to perpetuate testimony about any

matter cognizable in a United States court [to] file a verified petition in the district court for the district

where any expected adverse party resides.” Fed. R. Civ. P. 27(a). This procedural rule permits the taking

of a deposition before an action is commenced. Even through Defendant Cape was still alive when Blash

filed this lawsuit, if either party feared losing his all-important testimony, either party could have moved

the Court to perpetuate Defendant Cape’s testimony even before the commencement of discovery.

matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is not genuine unless, based on

the evidence presented, “‘a reasonable jury could return a verdict for the nonmoving

party.’” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002)

(quoting United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991));

see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant may support

its assertion that a fact is undisputed by “citing to particular parts of materials in the

record, including depositions, documents, electronically stored information, affidavits

or declarations, stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A).9

“When the nonmoving party has the burden of proof at trial, the moving party is not

required to ‘support its motion with affidavits or other similar material negating the

opponent’s claim[]’ in order to discharge this ‘initial responsibility.’” Four Parcels of Real

Prop., 941 F.2d at 1437–38 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

Rather, “the moving party simply may show—that is, point out to the district court—

that there is an absence of evidence to support the nonmoving party’s case.” Id. (cleaned

up). Alternatively, the movant may provide “affirmative evidence demonstrating that

the nonmoving party will be unable to prove its case at trial.” Id.

9 Courts may consider all materials in the record, not just those cited by the parties. Fed. R. Civ. P.

56(c)(3).

The burden then shifts to the nonmoving party, who must rebut the movant’s

showing “by producing . . . relevant and admissible evidence beyond the pleadings.”

Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011) (citing

Celotex Corp., 477 U.S. at 324). The nonmoving party does not satisfy its burden “if the

rebuttal evidence ‘is merely colorable, or is not significantly probative’ of a disputed

fact.” Id. (quoting Anderson, 477 U.S. at 249–50). “A mere scintilla of evidence

supporting the [nonmoving] party’s position will not suffice.” Allen v. Tyson Fooods, Inc.,

121 F.3d 642, 646 (11th Cir. 1997). Further, where a party fails to address another party’s

assertion of fact as required by Fed. R. Civ. P. 56(c), the Court may consider the fact

undisputed for purposes of the motion. Fed. R. Civ. P. 56(e)(2). However, “credibility

determinations, the weighing of the evidence, and the drawing of legitimate inferences

from the facts are jury functions, not those of a judge. Anderson, 477 U.S. at 255. Stated

differently, “the judge’s function is not himself to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249.

“The evidence of the [nonmovant] is to be believed, and all justifiable inferences are to

be drawn in his favor.” Id. at 255.

B. Defendants’ Motion for Summary Judgment

Defendants present four main reasons why the Court should grant their Motion

for Summary Judgment. First, they state that Blash’s entire lawsuit is based on false

premises. [Doc. 64-1 at p. 3]. Second, as to Blash’s Title VII claim against Defendant

Brannen in his official capacity, they contend that it is procedurally deficient, because

he filed his Charge of Discrimination against the county, not the sheriff’s office. [Id. at p.

5]. Third, they argue that Blash’s Title VII and Section 1983 claims are deficient as a

matter of law. [Id. at pp. 9–16]. And finally, they claim that Defendant Cape in his

individual capacity, as the former Sheriff of Pulaski County, is entitled to qualified

immunity with respect to Blash’s Section 1983 claim. [Id. at p. 16].

1. Defendants’ Allegation That Blash’s Amended Complaint Is Based

on False Premises

According to Defendants, a simple, fact-based review of the record makes clear

that the internal investigation disagreement upon which Blash makes his race

discrimination claims is a false premise. [Doc. 64-1 at p. 3]. Within this first main

argument, Defendants contend that Blash’s claim that he “was a victim of ‘baseless

charges,’” is undermined by his concession that he did advise Scott Orta to stay away

from the female postal worker. [Id. (quoting [Doc. 58 at ¶ 21])]; [Doc. 78, Blash Depo., p.

38:5–17]. But, as mentioned above, irrespective of the conceded fact that Blash actually

spoke to Orta, what truly matters is whether Blash has been the victim of intentional

race-based discrimination.

In a second sub-argument, Defendants also argue that Blash’s “invocation of an

‘independent investigation’ is without merit,” because the USPS (as an entity

independent from the Pulaski County Sheriff’s Office) investigated Blash’s conduct.

[Doc. 64-1 at pp. 3–5]; [Doc. 58 at ¶ 21]. Defendants state, “[i]t is not apparent––and

[Blash] will not be able to explain why––an ‘independent investigation’ would have

caused [Defendant] Cape to reach a different conclusion when the facts were not in

dispute.” [Doc. 64-1 at p. 4]. To the contrary, the facts about certain aspects of the

investigation (particularly when it ended) were obviously very much in dispute, and

Blash clearly believes that an internal, independent investigation would have shown

that his termination was unwarranted. [Doc. 58 at ¶¶ 35–38].

Finally, Defendants maintain that, in actuality, the USPS and the Oconee Drug

Task Force jointly conducted the investigation into the female postal employee, not the

Pulaski County Sherriff’s Office. [Doc. 64-1 at pp. 4–5]. Instead, Defendants clarify that

the Pulaski County Sherriff’s Office merely oversaw the investigation regarding Renee

Howard. Based on these three points, Defendants’ general averment in favor of

summary judgment is that because Blash’s conduct “was investigated by law

enforcement agencies independent of the Pulaski County Sheriff’s Office,” his claim

that he did not receive any independent investigation is false. [Id. at p. 5 (emphasis

added)]. However, as mentioned numerous times throughout this Order, this case

hinges on something much more important than the results of any independent

investigation––it simply comes down to whether Defendant Cape’s decision to refuse

Blash an independent investigation and ultimately terminate him was predicated upon

unlawful discrimination.

2. Defendants’ Allegation That Blash’s Charge of Discrimination is

Procedurally Deficient

Before embarking on the comparator analysis under Lewis I, Defendants also

claim that Blash’s Title VII claim against Defendant Brannen in his official capacity is

procedurally deficient, because Blash filed his Charge of Discrimination against the

county instead of the sheriff’s office. [Doc. 64-1 at pp. 5–9]. Applying the old adage,

“you can’t have your cake and eat it too,” any argument that Blash should have served

his Charge of Discrimination on the Pulaski County Sheriff’s Office instead of Pulaski

County itself creates an obvious disconnect regarding Defendants’ previous arguments

for dismissal of the Pulaski County Sheriff’s Office.

Generally speaking, the Equal Employment Opportunity Commission (“EEOC”)

is charged with investigating “allegations of civil discrimination and harassment in the

employment context and determining whether there is any reason to believe the

allegations are true.” Virgo v. Riviera Beach Assocs., 30 F.3d 1350, 1358 (11th Cir. 1994). A

person wanting to file a lawsuit under Title VII must first file a Charge of

Discrimination with the EEOC “alleging a Title VII violation and exhaust all remedies

provided by the EEOC.” Id. (citing 42 U.S.C. § 2000e-5). “If the conciliation efforts are

unsuccessful, the EEOC will inform the parties and issue a letter authorizing the

complainant to file a Title VII suit.” Id. And, as Defendants contend, a party not named

in the Charge of Discrimination cannot ordinarily be sued in a subsequent civil action.

Id.; [Doc. 64-1 at p. 6]. Under this general rule, a plaintiff’s failure to name his correct

employer could be fatal to his lawsuit. However, a party unnamed in the Charge of

Discrimination may be subjected to the jurisdiction of federal courts under certain

conditions:

(1) the similarity of interest between the named party and the unnamed

party; (2) whether [a] plaintiff could have ascertained the identity of the

unnamed party at the time the EEOC charge was filed; (3) whether the

unnamed parties received adequate notice of the charges; (4) whether the

unnamed parties had an adequate opportunity to participate in the

reconciliation process; and (5) whether the unnamed party actually was

prejudiced by its exclusion from the EEOC proceedings.

Virgo, 30 F.3d at 1358–59 (citations omitted).

Mainly, Defendants argue that because the Pulaski County Sheriff’s Office is not

named in Blash’s Charge of Discrimination, it cannot subsequently be sued. [Doc. 64-1

at p. 6]. To support this contention, they correctly point to the Eleventh Circuit Court of

Appeals’ recognition that “the sheriff’s office is not a division or subunit of . . . its

county governing body.” [Id. (quoting Manders v. Lee, 338 F.3d 1304, 1310 (11th Cir.

2003))]. Instead, “the sheriff’s office is a separate constitutional office independent from

[Pulaski] County and its governing body.” Manders, 338 F.3d at 1310. However, as

discussed by the Pulaski County Sheriff’s Office in its unopposed dismissal motion, a

sheriff’s office is not a legal entity capable of being sued. [Doc. 12 at p. 4 (citing Ga.

Insurers Insolvency Pool v. Elbert Cty., 368 S.E.2d 500, 502 (Ga. 1988))]; see also [Doc. 28].

Accordingly, filing a Charge of Discrimination against the Pulaski County Sheriff’s

Office would lead only to the inevitable dismissal of any claim asserted against it. If the

“Pulaski County Commission,” is not, as Defendants argue, the appropriate party

against whom to file a Charge of Discrimination and a sheriff’s office, because of its

constitutional makeup, is not an entity capable of being sued, this leaves only one

option––naming the individual (in his official capacity) elected as sheriff. Thus, the

correct analysis to determine whether Blash’s Title VII claim is procedurally deficient

because he named the “Pulaski County Commission” in his Charge of Discrimination

would include a review of the above factors with attention to the person holding the

office (Defendant Cape) at the time of Blash’s termination, not the Pulaski County

Sheriff’s Office.

The purpose of the naming requirement is to provide a defendant with notice of

the charges against him and to inform the EEOC of all parties involved so that it may

undertake an investigation for conciliation purposes. Frazier v. Smith, 12 F. Supp. 2d

1362, 1369 (S.D. Ga. 1998) (citing Clark v. City of Macon, 860 F. Supp. 1545, 1550–51 (M.D.

Ga. 1994)). “Only where the purposes of Title VII have been fulfilled may such an action

be brought against an individual who was not named in the EEOC [C]harge.” Frazier, 12

F. Supp. 2d. at 1369 (citations omitted). In this instance, the burden falls on a plaintiff to

“explain why the individual was not named and to demonstrate that the purposes of

Title VII have been satisfied” despite the omission. Id.

Naturally, Blash begins by invoking the Eleventh Circuit Court of Appeals’

instruction to liberally construe the EEOC’s naming requirement. [Doc. 70 at p. 9]. He

argues that the purpose of a less-than-rigid, liberal construction “is to avoid creating a

burdensome technical requirement . . . where employees file [their] initial EEOC

[Charge] pro se,” as Blash did here. [Id. (citing Lewis v. Asplundh Tree Expert Co., No. 1:04-

cv-00054-MP-AK, 2008 WL 650433, at *3 (N.D. Fla. Mar. 7, 2008), aff’d in part, rev’d in

part, and remanded, 305 F. App’x 623 (11th Cir. 2008))]. Thus, the question becomes: were

the purposes of Title VII fulfilled despite Blash’s failure to name the acting sheriff in his

EEOC Charge. See Frazier, 12 F. Supp. 2d. at 1369, supra. The short answer is yes.

Here, while Blash’s Charge does not once mention the words “sheriff,” “sheriff’s

office,” or “Sheriff Cape,” it does state that he was employed as an “[o]fficer.” [Doc. 64-5

at p. 2]. Clearly, the EEOC investigator was able to conduct an interview with Blash, as

the “Charging Party,” and in turn receive a response from some “Respondent” denying

Blash’s allegations with detailed reasons—the same reasons Defendants have put to this

Court to defend the claims against them. [Doc. 64-6]; [Doc. 64-7]; [Doc. 64-8]; [Doc. 64-

9]. However, unlike the EEOC Charge, M.A. Butch Hall’s (the Sole Commissioner of

Pulaski County) letter in response to the EEOC’s request for “[his] organization . . . to

submit information and records,” did name most, if not all, of the individuals involved

in this lawsuit. [Doc. 64-8 at p. 2]. That said, “[s]urely the [Pulaski] County Sheriff

would have received notice of such a claim.” Frazier, 12 F. Supp. 2d. at 1369. How else

would Commissioner Hall have conveyed such detail in his response without

discussing the matter with his fellow elected official? Moreover, Blash named “Captain”

Danny Brannen in describing the particular events in his EEOC Charge. [Doc. 64-5 at p.

2]. Notwithstanding Blash’s failure to list Defendant Cape as his employer in the

Charge, an EEOC investigator successfully undertook an investigation, received

relevant information for conciliation purposes, and provided a summary of her

findings. Thus, looking at all of the subsequent documents related to Blash’s Charge, it

is clear that Defendant Cape received adequate notice of Blash’s charges and

undoubtedly knew what was going on. See, e.g., [Doc. 64-8 at p. 2].

While the contents of Blash’s EEOC Charge are not ideal, they ultimately fulfilled

the purposes of Title VII and that is all that is required. Accordingly, the Court finds no

reason to dismiss the Title VII claim now lodged against Defendant Brannen in his

official capacity (as the current Sheriff of Pulaski County) just because Defendant Cape

was not named in the EEOC Charge.

3. Defendants’ Argument that Blash’s Race-Discrimination Claims

Are Deficient as a Matter of Law

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. 64-2 at ¶

28].

Blash’s case arises principally out of Title VII of the Civil Rights Act of 1964,

which makes it unlawful for an employer “to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” Lewis I, 918 F.3d at 1220

(quoting 42 U.S.C. § 2000e-2(a)(1)); [Doc. 58 at p. 12]. “The language of Title VII makes

plain the purpose of Congress to assure equality of employment opportunities and to

eliminate . . . discriminatory practices and devices” used to disadvantage racial, gender,

and religious minorities in the employment context. Lewis I, 918 F.3d at 1220 (quoting

McDonnell Douglas, 411 U.S. at 800).

As already noted, Blash also asserted claims under 42 U.S.C. § 1983. [Doc. 58 at p.

13]. “The same analysis––and in particular, the McDonnell Douglas burden-shifting

framework––applies to those claims, as well.” Lewis I, 918 F.3d at 1220, n.5 (citing

Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (“Standard alleges

that he was terminated on the basis of his race and national origin (Caucasian-

American), in violation of Title VII and 42 U.S.C. § 1981. Both of these statutes have the

same requirements of proof and use the same analytical framework[;] therefore[,] we

shall explicitly address the Title VII claim with the understanding that the analysis

applies to the [Section] 1981 claim as well.”)).

i. The Comparator Analysis Under McDonnell Douglas

When a plaintiff alleges intentional discrimination and his case faces a

defendant’s motion for summary judgment, he “must present sufficient facts to permit a

jury to rule in [his] favor[,]” to ensure his case’s survival. Lewis I, 918 F.3d at 1220. One

way of ensuring that survival is, as previously mentioned, to satisfy the three-part

burden-shifting framework set out in McDonnell Douglas, 411 U.S. 792. Id. Another is to

“demonstrate a ‘convincing mosaic’ of circumstantial evidence that warrants the

inference of discrimination.” Id. at n.6 (citing Smith v. Lockheed-Martin Corp., 644 F.3d

1321, 1328 (11th Cir. 2001)).

As for the McDonnell Douglas route, a plaintiff bears the initial burden of

establishing a prima facie case of intentional discrimination. Lewis I, 918 F.3d at 1220.

This burden can be met “by showing (1) that [he] belongs to a protected class, (2) that

[he] was subjected to an adverse employment action, (3) that [he] was qualified to

perform the job in question, and (4) that [his] employer treated ‘similarly situated’

employees outside [his] class more favorably.” Id. at 1220–21 (citation omitted). If a

plaintiff succeeds in making a prima facie case, “the burden [then] shifts to [a]

defendant to articulate a legitimate, nondiscriminatory reason for its actions.” Id. at 1221

(citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Then, if a

defendant makes such an articulation, the burden shifts back to a plaintiff who must

demonstrate that the proffered, nondiscriminatory reason was “merely a pretext for

unlawful discrimination, an obligation that ‘merges with [a] [plaintiff’s] ultimate

burden of persuading the [factfinder] that [he] has been the victim of intentional

discrimination.’” Lewis I, 918 F.3d at 1221 (quoting Burdine, 450 U.S. at 256) (second and

third alterations in original).

“[D]iscrimination,” first and foremost, “consists of treating like cases differently[,]”

and if this true, the converse must also be true: “Treating different cases differently is not

discriminatory, let alone intentionally so.” Lewis I, 918 F.3d at 1222–23 (emphasis

supplied) (first citing N.L.R.B. v. Collier, 553 F.2d 425, 428 (5th Cir. 1977) and then citing

Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1186 11th Cir. 1984)). Thus, the first

burden of McDonnell Douglas essentially calls upon a plaintiff to show that he “was

treated differently from another ‘similarly situated’ individual”––or, a comparator. Lewis

I, 918 F.3d at 1217 (citing Burdine, 450 U.S. at 258–59 (emphasis added)).

Unchanged by the Eleventh Circuit Court of Appeals’ opinion in Lewis I is the

placement of the comparator analysis, which still “must be conducted at the prima facie

stage of McDonnel Douglas’s burden-shifting framework.” 918 F.3d at 1218–24.

However, the Lewis I court answered and changed course to “[t]he obvious question:

Just how ‘similarly situated’ must a plaintiff and [his] comparator(s) be?” Id. at 1217. In

cases like this one, “a plaintiff must show that [he] and [his] comparators are ‘similarly

situated in all material respects.” Id. at 1224. Having established the correct standard to

govern the “similarly situated” issue, the Court must now apply it to Blash’s case.

In short, the Court concludes that Blash has not made a prima facie case because,

under the Eleventh Circuit Court of Appeals’ guidance in Lewis I, he and his proffered

comparators––Deputies Christ White and Jordan Peavy––are simply not “similarly

situated in all material respects.” Id. at 1229.

Easy points first: the first three prongs of the prima facie case are undoubtedly

satisfied. Blash belongs to a protected class; his termination “subjected [him] to an

adverse employment action;” and, based on his employment assessment and

corresponding recommendation for an “increase in pay,” he was “qualified to perform

the job in question.” Id. at 1220–21; see also [Doc. 72-1, Brannen Depo., p. 27:20–24]; [Doc.

70-2 at ¶ 9]; [Doc. 70-1 at ¶ 28]; [Doc. 70-8 at pp. 2–3]. Accordingly, all that is left for the

Court to determine is whether Blash can show that he and his proffered comparators

were “similarly situated in all material respects.” Lewis I, 918 F.3d at 1229.

In its most general sense, Blash’s case boils down to this: Was Blash’s race a

motivating factor in his termination? Blash, obviously, says yes, because Defendant

Cape gave an investigation to two white deputies, but not to him “even though [he]

specifically requested [one].” [Doc. 70-15, Blash Dec., ¶ 12]. These two white deputies

were “accused of assaulting an African American” during an arrest, and as a result of

this accusation, the incident “was . . . investigated by the [GBI],” and they were

“ultimately cleared . . . of the [accusations].” [Doc. 72-1, Brannen Depo., pp. 35:14––

37:8]; [Doc. 78, Blash Depo., p. 41:14–16]; [Doc. 78 at p. 59]. Hence, Blash contends that

he should have received the benefit of his own independent investigation in order to

clear the accusations made against him. [Doc. 78 at p. 59]. No, these two situations are

completely different.

Lewis I instructs that Blash and his comparators “need not be ‘similar in all but

the protected ways.’” 918 F.3d at 1227 (emphasis in original) (citation omitted).

Therefore, Blash “needn’t prove” that he and his comparators “are identical save for

their race[,]” “[n]or is it necessary” for him to prove that he and his comparators had

“precisely the same title.” Id. Instead, the relevant inquiry, based on “substantive

likeness,” is whether Defendant Cape subjected Blash and his comparators to different

employment policies. Id. at 1227–28 (citing Lathem v. Dep’t of Children & Youth Servs., 172

F.3d 786, 793 (11th Cir. 1999);

Ordinarily, a plaintiff’s proffered comparators:

• will have engaged in the same basic conduct (or misconduct);

• will have been subject to the same employment policy, guideline, or rule;

• will have been under the jurisdiction of the same supervisor; and,

• will share that plaintiff’s employment or disciplinary history.

Lewis I, 918 F.3d at 1227–28. Certainly, these points are not intended to be an exhaustive

list to determine comparator-based similarity. Instead, they are merely examples to

guide a district court’s analysis under the new standard governing these types of cases.

In short, the “all material respects” standard turns a comparator analysis “not on formal

labels, but rather on substantive likeness.” Id. at 1228. To better explain this new

standard, the Eleventh Circuit of Appeals, using the Supreme Court’s phrasing, stressed

that a plaintiff and his comparators “must be sufficiently similar, in an objective sense,

that they ‘cannot reasonably be distinguished.’” Id. at 1228 (quoting Young v. United

Parcel Serv., 575 U.S. 206, 231 (2015)).

While Blash and his comparators are admittedly similar in some respects, there

is, nonetheless, a substantial difference when it comes to their misconduct. Blash’s

conduct of allegedly compromising a USPS investigation can be reasonably

distinguished from Deputies White and Peavy’s alleged assault of an African-American

male during his arrest. Such a clear difference pulls Blash’s comparators from

underneath a “sufficiently similar” label. This is enough to end the inquiry, because

“[a]n employer is well within its rights to accord different treatment to employees who

are differently situated in ‘material respects’—e.g., who engaged in different conduct . . .

.” Lewis I, 918 F.3d at 1228. “Treating different cases differently is not discriminatory, let

alone intentionally so.” Id. at 1222–23 (emphasis in original) (citation omitted). If Blash

is arguing that because his alleged misconduct and the alleged misconduct of his

comparators were both criminal in their nature, he, like the plaintiff in Lewis, “glosses

over critical differences” and paints with too broad a brush. Id. at 1230. Clearly these

two incidents—both perpetuating allegations of misconduct by sheriff’s deputies—can

be reasonably distinguished. Id. at 1228. Blash’s alleged violation of his oath of office10

versus Deputies White and Peavy’s alleged assault on an African-American arrestee is

“simply too dissimilar to permit a valid inference that invidious discrimination is

afoot.” Id. at 1229; [Doc. 11-1 at p. 3]; [Doc. 36].

Moreover, when it comes to whether Blash and his comparators are subject to the

same employment policy, guideline, or rule, the “likely” answer is yes.

Notwithstanding the fact that there is no policy that required Defendant Cape to give all

deputies accused of any criminal misconduct an investigation by the GBI, Blash also

failed to submit any policies or guidelines to permit the Court to make any comparison

between Blash and Deputies White and Peavy. Although Blash filed what appears to be

various page excerpts from Pulaski County’s Personnel Policies and Procedures enacted

by the “Pulaski County Commission,” he offers nothing in the record to indicate that

Defendant Cape was bound by them or that Deputies White and Peavy’s employment

was conditioned upon these same policies as well. Compare [Doc. 70-6] with [Doc. 70-7].

Of course, Blash isn’t arguing that Defendant Cape failed to abide by the Pulaski

County policies that Blash signed prior to his employment in 2010. [Doc. 70-6 at p. 4];

[Doc. 70-2 at ¶ 1]. In fact, the record shows that all parties involved adhered to the

10 The Court previously took judicial notice of the fact that a Pulaski County Grand Jury returned a two-

count Indictment [Doc. 11-1] against Blash as a result of his supposed interference with the USPS

investigation––Violation of Oath by Public Officer and Obstruction of an Officer. [Doc. 11-1 at pp. 1, 3];

[Doc. 36].

“Grievance Policy” section in light of Blash’s appeal of his termination to Pulaski

County’s Sole Commissioner, M.A. Butch Hall. [Doc. 70-7 at pp. 2–3].

However, one provision in Pulaski County’s Personnel Policies and Procedures

states, “Other personnel information may be available for official purposes at the

discretion of the governing authority.” [Doc. 70-7 at p. 3]. Thus, the question becomes:

did Defendant Cape, as the “governing authority” for the Sheriff’s Office, have any

“other personnel information?” We don’t know. Unquestionably, Blash states in his

declaration that Defendant Brannen was his direct supervisor and that Defendant

Brannen, “[a]s a matter of policy and procedure in the Pulaski County Sheriff Office”

would make a recommendation for discharge. [Doc. 70-15, Blash Dec., ¶ 10]. Yet, any

concrete existence of this supposed policy and procedure is wholly absent from the

record, and now is the time to present it to the Court for consideration. Moreover, if, as

Blash claimed in his deposition, that a GBI investigation is “[n]ormal protocol,” this

“protocol” and “other personnel information” is likewise uncorroborated and unknown

to the Court.11 [Doc. 78, Blash Depo., 41:22––42:2].

11 Blash’s own declarant, Anthony Taylor, who also used to work for the Pulaski County Sheriff’s Office,

stated that he “observed that there were no policies regarding what were considered job infractions.”

[Doc. 70-18, Taylor Dec., ¶ 16]. Yet, as already mentioned, Blash apparently signed a Certificate of Receipt

of Company Policy for Pulaski County. [Doc. 70-6 at p. 4]. Now, whether these were the policies that

governed Blash’s employment, he doesn’t tell us. By what Blash provides, Pulaski County’s entire

“policy” consists of four pages and begins with a numerical list (starting at Number 21) of what appears

to be infractions. [Doc. 70-7 at pp. 2–5]. Did former Deputy Anthony Taylor not receive this list within his

policies? Did he even sign a Certificate of Receipt of Company Policy for Pulaski County, like Blash?

Again, we don’t know.

The polices Blash placed into the record have nothing to do with Defendant

Cape’s alleged requirement to invoke a GBI investigation for every single allegation of

criminal misconduct possibly committed by his deputies––if such a requirement even

exists. To the extent Blash is asking the Court to rewrite what could be a non-existent

policy, mandating GBI (or other third-party) investigations any time a sheriff’s deputy’s

employment may be in legal jeopardy due to a potential criminal infraction, such a

request contravenes the spirit of this circuit’s “material respects” standard. Lewis, 918

F.3d at 1228.

This standard, when met, allows inferences of unlawful discrimination to surface

and leaves employers with the “necessary breathing space to make appropriate

business judgments.” Id. We must remember that “[s]heriffs alone hire and fire their

deputies[,]” which is precisely what happened in this case. Manders, 338 F.3d at 1311

(citing O.C.G.A. § 15-16-23). Defendant Cape, irrespective of whether it was an

informed one, appears to have made the decision to terminate Blash for a

nondiscriminatory, fireable offense. Regardless, when an employer acts under the

mistaken, but honest, impression “that [his] employee violated a work rule,” he is not

liable for discriminatory conduct. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d

1354, 1363 n.3 (11th Cir. 1999). Thus, even if Blash could make a prima facie case,

Anthony Taylor also states in his declaration that “[w]henever a [s]heriff’s [d]eputy had an alleged

infraction [Defendant] Cape would call the GBI to investigate.” [Doc. 70-18, Taylor Dec., ¶ 22]. Again, the

Court must ask, perusing the record once more: Where is this policy?

Defendant Cape could meet his burden under McDonnell Douglas by “articulat[ing] a

legitimate, nondiscriminatory reason for [his] actions.” Lewis I, 918 F.3d at 1221.

But here’s the snag. Blash contends that Defendants’ legitimate

nondiscriminatory reason is “bogus,” because “the investigation had already

concluded” and because “[i]t was common place for officers to tell civilians [to] stay

away from individuals who are thought to be potential criminals.”12 [Doc. 58 at ¶¶ 23–

12 When questioned about this “common practice,” Defendant Brannen responded, “I don’t understand

the question.” [Doc. 72-1, Brannen Depo., p. 27:4–7]. Rather than rephrase his question in hopes to extract

some answer, Blash completely abandoned this question and proceeded to ask about the “sting operation

involving . . . Renee Howard.” [Id. at 27:8–10]. However, Blash, in his declaration, states that it was, in

fact, “common practice for police officers” to caution civilians “with whom they were familiar,” using

“words to the effect that ‘you should stay away’ or ‘be careful.’” [Doc. 70-15, Blash Dec., ¶ 6]. Moreover,

the allegation that this conduct is common practice in the Pulaski County Sheriff’s Office is further

corroborated by the Declaration of Eddie Nieves [Doc. 73-1]. Based on the Court’s consideration of Eddie

Nieves’s Declaration, Blash’s Motion to Accept [Doc. 73] is GRANTED. In his declaration, Eddie Nieves

states that he is “not aware of any police officer or [s]heriff’s [d]eputy being disciplined or terminated for

this conduct that law enforcement officers routinely do.” [Doc. 73-1, Nieves Dec., ¶ 21]. Since Blash’s

declaration and Eddie Nieves’ declaration are both admissible forms of evidence under Federal Rule of

Civil Procedure 56(c), and because there is no evidence to the contrary, it must be accepted that Blash’s

warning to Scott Orta to stay away from Renee Howard was common practice among “police officers and

[s]heriff’s [d]eputies . . . at the highest level.” [Id. (emphasis added)].

However, the 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. Although Blash claims (in his Amended Complaint) that “[t]he common practice of officers

telling civilians that they should stay away from potential criminals was well known by . . . [Defendant]

Cape,” pleadings are not evidence. [Doc. 58 at ¶ 25]. Therefore, the contents of Blash’s Amended

Complaint cannot be relied upon to establish fact. Am. Safety Indem. Co. v. T.H. Taylor, Inc., 513 F. App’x

807, 815 (11th Cir. 2013) (“Such statements by counsel in pleadings are not evidence.”); Dowell v. Prime

Healthcare Corp., No. CIV. A. 00–D–686–E, 2001 WL 611198, at *5 (M.D. Ala. May 4, 2001).

25]. Briefly mentioned above, “the [Pulaski County] Sheriff’s Office assigned [Jay

Williams],” who was at the time, a deputy sheriff,13 “to work with the Oconee Drug

Task Force” to assist the USPS with its criminal investigation. [Doc. 64-3, Williams Aff.,

¶¶ 3–4]. Following a pre-operation14 briefing in “late November 2014,” USPS Agent

Jarrett Arrington contacted then-Deputy Williams to express his concerns that the

investigation may have been compromised, because its “existence had been leaked to

Scott Orta.” [Id. at ¶¶ 5, 10]. After confirming (via interview with Scott Orta) that Blash

was the individual who spoke to Scott Orta, then-Deputy Williams “briefed” his

supervisor, Major Jason Freemont, and informed him that “Blash had compromised the

postal investigation.” [Id. at ¶¶ 15–20]. Following that briefing, Defendant Brannen

admits that he and Major Freemont had “a conversation;” however, it was Major

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. [Doc. 70-16, McGriff Dec., ¶ 21]; [Doc. 70-15, Blash Dec, ¶ 6]. 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. This oversimplified

testimony seems to be another instance of Blash painting in generalities when the canvas demands much

greater detail. See Lewis I, 918 F.3d at 1229–30.

13 Jay Williams is now employed as a Narcotics Investigator with the Wilcox County Sheriff’s Office. [Doc.

64-3, Williams Aff., ¶ 2].

14 Jay Williams’ statements with regard to a “pre-operation briefing” seems to indicate that the

investigation was still ongoing, and not, as Blash’s suggests, “over.” [Doc. 64-3, Williams Aff., ¶ 5]; [Doc.

70-15, Blash Dec., ¶ 7]. The parties have not once been able to present a clear timeline of what actually

transpired in the days leading up to Blash’s termination, and the Court will not belabor over “what-ifs”

or “what could have beens” in order to streamline a logical sequence of events. No one seems to be able

to present a true, comprehensive, representative timeline of events for this case; thankfully, however, one

is not needed to decide this case. All that is needed to proof of race motivated Defendant Cape’s decision

to terminate Blash.

Freemont who subsequently briefed Defendant Cape, not Defendant Brannen.15 [Doc.

72-1, Brannen Depo., pp. 28:25––31:1]; [Doc. 64-4 at pp. 3–4]. Based on this information,

Defendant Cape met with Blash, Major Freemont, and Defendant Brannen, and during

this meeting, Defendant Cape told Blash he “was going to be terminated.” [Doc. 72-1,

Brannen Depo., p. 31:14–15]. Now, as stated earlier, whether this was an informed

decision or even the correct one, the bottom line is that any employment action rested

with Defendant Cape. See Damon, 196 F.3d at 1363 n.3 (citation omitted) (“An employer

‘may fire an employee 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.’”). While

no one can testify as to Defendant Cape’s thoughts, there is nothing in the record

showing that race was a motiving factor behind his decision to terminate Blash.

Purely for the sake of being thorough, Blash and his comparators are conceivably

similarly-situated under the remaining, but non-exhaustive points. For instance, Blash,

White, and Peavy––as deputies––were all under the same supervisor, Defendant Cape.

Further, because the Court must draw all justifiable inferences in Blash’s favor, the

record tells us that Deputy White and Blash could probably be deemed “similarly

situated” even when it comes to employment and disciplinary history, because they

both received an “increase in pay” in “recognition of [six] months [of] service.”

15 Defendant Cape never discussed his decision to fire Blash with Defendant Brannen. [Doc. 72-1, Brannen

Depo., 28:21–24].

Anderson, 477 U.S. at 255; [Doc. 70-8 at p. 3]. However, that is all we know. The record

includes only one favorable employee assessment for Blash, but there is no employee

assessment for Deputy White to allow further comparison. [Doc. 70-8 at p. 2]. What’s

more, there is absolutely nothing in the record (pay-raise related or otherwise)

pertaining to Deputy Peavy’s employment or disciplinary history. Whether Deputies

White and Peavy are similarly situated to Blash because of their employment and

disciplinary history or because they are under the same supervisor is of no

consequence––the assault allegations made against Deputies White and Peavy are alone

enough to extract them from the comparator label using Lewis I’s “all material respects”

standard.

As discussed above—because they engaged in substantially different

misconduct––the Court finds that Deputies White and Peavy are not similar to Blash “in

all material respects,” and thus are not valid comparators for the purposes of Blash’s

prima facie case under McDonnell Douglas’s burden-shifting framework. However,

Blash’s inability to produce a comparator does not necessarily doom his case. Lewis v.

City of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019) (“Lewis II”) (quoting Lockheed-

Martin Corp., 644 F.3d at 1328).

ii. The Convincing Mosaic Theory

The Court’s determination that Blash failed to establish a prima facie case under

McDonnell Douglas, because Deputies White and Peavy were not similarly situated in all

material respects, does not absolutely foreclose his race-discrimination claims. The

Eleventh Circuit Court of Appeals is clear that “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 an employment discrimination

case.” Lewis II, 934 F.3d at 1185 (quoting Lockheed-Martin Corp., 644 F.3d at 1328). Earlier,

the Court briefly mentioned another way through which a plaintiff may overcome a

defendant’s motion for summary judgment in a Title VII case––presenting a mosaic of

circumstantial evidence that raises a genuine issue of material fact. See Section

(III)(B)(3)(i).

Even without similarly-situated comparators, a “plaintiff will always survive

summary judgment if he . . . presents circumstantial evidence that creates a triable issue

concerning the employer’s discriminatory intent . . . that would allow a jury to infer

intentional discrimination.” Lewis II, 934 F.3d at 1185 (quoting Lockheed-Martin Corp., 644

F.3d at 1328). A plaintiff may show a convincing mosaic through evidence

demonstrating, among other things, (1) suspicious timing and ambiguous statements as

well as “other bits 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 II, 934 F.3d at 1185 (quoting Silverman v.

Bd. of Educ. of City of Chi., 637 F.3d 729, 733–34 (7th Cir. 2011)). “The evidence presented

under the ‘convincing mosaic’ must be sufficient enough ‘to overcome the lack of

comparator evidence.’” Woodward v. Jim Hudson Luxury Cars, Inc., No. CV 118-032, 2019

WL 4793058, at *8 (S.D. Ga. September 30, 2019) (emphasis added) (quoting Williams v.

Cleaver-Brooks, Inc., No. 7:11-CV-144 (HL), 2012 WL 6151141, at *8 (M.D. Ga. Dec. 11,

2012)).

First, to support his position, Blash lists two other deputies––Jay Williams and

Jay Wood––in addition to the previously-proffered comparators, Deputies White and

Peavy. As for Jay Wood, he was “[a]ccused of using hostile and abusive language[,]” an

infraction Blash has never been accused of committing. [Doc. 78, Blash Depo., p. 40:3–

10]. Thus, Deputy Jay Wood’s actions provide no assistance to Blash’s case or to the

Court’s analysis. Deputy Jay Williams,16 on the other hand, “drove his patrol car out of

the county,” to Perry, Georgia, sometime in 2013. [Doc. 78, Blash Depo., pp. 39:15––

40:2]; [Doc. 72-1, Brannen Depo., p. 37:19–22]. Although Deputy Jay Williams’ infraction

was ostensibly “against the rules,” Defendant Cape only issued a “verbal reprimand.”

[Doc. 72-1, Brannen Depo., pp. 37:9––38:3]. Blash, incidentally, also used a patrol car

“while not on police business.” [Id. at 38:4–7]. However, rather than verbally reprimand

Blash, Defendant Cape suspended him for two days and prohibited him from driving

his patrol car home for a six-month period. [Id. at 38:8–12].

16 This is presumably the same Jay Williams mentioned above, employed by the Pulaski County Sheriff’s

Office as a deputy from July 12, 2010, until July 13, 2015. [Doc. 64-3, Williams Aff., ¶ 3].

Deputy Jay Williams’s incident occurred in 2013, Blash’s––we, of course, aren’t

told. Looking at this scenario on its most basic level: two deputies, one black and one

white, used their patrol cars for an unapproved purpose and received different

punishments. However, this instance was not what caused Blash to file his EEOC

Charge of Discrimination, and there is no evidence that it somehow motivated

Defendant Cape’s decision to terminate him in 2014. Taking these facts to be true, as

little as we have, the record does not definitively show whether Deputy Jay Williams

had been employed longer than Blash or whether they shared common employment or

disciplinary histories. Looking at the record, a conclusion that Blash and Deputy Jay

Williams were similarly situated is simply too speculative. Even assuming without

deciding, however, that Blash and Deputy Jay Williams were similarly situated––

lending to the notion that Defendant Cape afforded “better treatment” to the white

deputy––this single, solitary instance is far from demonstrating the “systematically

better treatment” that is needed to lead to an inference of discrimination needed to

present a convincing mosaic theory. Lewis II, 934 F.3d at 1185.

Hoping to add another tile to his mosaic of race discrimination, Blash obtained

the Declaration of Anthony Taylor (introduced above), a former deputy in the Pulaski

County Sheriff’s Office who, like Blash, is African American. [Doc. 70-18, Taylor Dec.,

¶¶ 4, 8]. According to Deputy Taylor, he experienced differential treatment based on his

race when Defendant Cape refused to let him drive his patrol car to his home,

“ostensibly because of the distance” but allowed a white deputy, “who lived at least as

far or further than [Deputy Taylor]” to drive his patrol car home. [Id. at ¶¶ 13–14]. It

was not until the white deputy was permitted to drive his patrol car home that Deputy

Taylor was also allowed to do so. [Id. at ¶ 15].

This scenario, however, can be quickly dismissed as evidentiary support for the

convincing mosaic theory. Blash offers no evidence regarding whether Defendant

Cape’s actions towards Deputy Taylor occurred in relation to Blash’s termination. See

Woodward, 2019 WL 4793058, at *8 n.5 (citing Quigg v. Thomas Cty. Sch. Dist., 814 F.3d

1227, 1242 (11th Cir. 2016)) (considering temporal proximity of other events allegedly

linked to the adverse employment action at issue). Looking at the contents of the

Declaration of Anthony Taylor, we see that Deputy Taylor worked in the Pulaski

County Sheriff’s Office “from 2010 to 2016,” and that “more than a year after [he] had

been working as a . . . [d]eputy,” Defendant Cape permitted a newly-hired white

deputy to drive his patrol car home. [Doc. 70-18, Taylor Dec., ¶¶ 8, 14]. As for exactly

when this occurred in relation to Blash’s adverse employment action in 2014, the record

is silent. As his declaration is written, Deputy Taylor’s scenario could have occurred

anytime between 2011 and 2016. Overly-broad timing issues aside, there is, most

importantly, no evidence that this scenario is somehow linked to any alleged

discriminatory intent from Defendant Cape when it comes to Blash’s termination.

Without more, the Court is not willing to say that this event presents sufficient evidence

to overcome Blash’s lack of a comparator. Woodward, 2019 WL 4793058, at *8, supra.

In keeping with the ever-important balance between employee protection and an

employer’s rational business judgments, the Court is not in the position to adjudge

whether employment decisions are prudent or fair and to act as some sort of super

personnel department. Lewis I, 918 F.3d at 1224–25; Morgan v. Birmingham Bd. of Educ.,

No. 2:17-cv-02031-ACA, 2019 WL 4805786, at *6 (N.D. Ala. Oct. 1, 2019); see also [Doc. 74

at pp. 5–6 (citing Flowers v. Troup Cty. Sch. Dist., 803 F.3d 1327, 1338 (11th Cir. 2015))].

Instead, the Court’s “sole concern is whether unlawful discriminatory animus motivates

a challenged employment decision.” Morgan, 2019 WL 4805786, at *6 (quoting Damon,

196 F.3d at 1361). Blash has not shown this; therefore, his attempt to create a convincing

mosaic of race discrimination also fails.

4. Defendants’ Argument That Defendant Cape Is Entitled

to Qualified Immunity as to Blash’s Section 1983 Claim

Time and time again, Blash tells the Court that Defendant Brannen “at all

relevant times . . . harbored racial animus,” used pejorative terms when referring to

African Americans, and was even suspended for four days for hostile behavior towards

a former deputy who was African American. [Doc. 70-2 at ¶¶ 14–15]; [Doc. 70-15, Blash

Dec., ¶ 8 (“Anthony Taylor was a [d]eputy in the Pulaski County Sheriff’s Office. He is

African American.”)]. However, what Defendant Brannen did or how he acted does not

matter, nor will it ever (for purposes of this lawsuit). Thus, in light of the Court’s

discussion and ruling on Blash’s Motion for Reconsideration [Doc. 76], any further

attempt to resurrect a cat’s paw theory via numerous declarations by those familiar

with Defendant Brannen is unavailing. See [Doc. 100]. All that matters is Defendant

Cape’s reason for terminating Blash.

Through this lens, a mixed-motive theory of race discrimination must also fail.

This theory requires a plaintiff to show that (1) the defendant took an adverse

employment action against him and that (2) a protected characteristic was a motivating

factor for the defendant’s adverse employment action. Quigg, 814 F.3d at 1232–33. Based

purely on the evidence presented to the Court, there is nothing to say exactly what was

the motivating factor. Defendants even argue that “the relevant inquiry is whether

[Defendant] Cape had a good faith belief that [Blash] interfered with a pending [USPS]

investigation and whether that belief motivated the termination.” [Doc. 74 at p. 6 (citing

EEOC v. Total Sys. Servs. Inc., 221 F.3d 1171, 1176–77 (11th Cir. 1991))]. However, based

on the above discussion, Blash has not shown that his race was a motivating factor

behind his termination, and that is the ultimate question. It is Defendant Cape’s mind,

and his mind alone, that matters in this case. As stated above, the obvious story is that

Defendant Cape terminated Blash because Blash interfered with the USPS’s

investigation. Whether this was an informed decision or even the correct course of

action is not for the Court to consider. See Section (III)(B)(3)(i), supra; Morgan, 2019 WL

4805786, at *6. If Defendant Cape believed that Blash committed a fireable offense and

fired Blash, the Court cannot second guess that decision absent any proof of racially

discriminatory intent. Blash, however, believes that his case survives summary

judgment solely because “[he] disputes the existence of a lawful motive.” [Doc. 70 at p.

24].

Essentially, Blash argues something that “might have” occurred as “fact.” In his

Response brief to Defendants’ summary judgment motion, Blash states, “The fact that

[Defendants] might have used [Blash’s] warning to Orta to manufacture a trumped-up

reason to fire him . . . does not . . . permit [Defendant Cape] to establish the undisputed

existence of lawful motive for [Blash’s termination].” [Id. at p. 25]. What Blash must

prove, is that Defendant Cape was aware that Major Freemont conveyed false

information to him regarding the USPS investigation interference, and that he, in spite

of that knowledge, terminated Blash because of his race. This simply cannot be shown

by this case’s record. We do not know, nor will we ever know, Defendant Cape’s state

of mind, because no one ever took his deposition or received an affidavit or declaration

from him. There is no evidence that Defendant Cape did not honestly believe––rightly

or wrongly—that what he was told regarding the alleged compromise of the USPS

investigation actually occurred. See Damon, 196 F.3d at 1363 n.3, supra. Without this

evidence, it is impossible for Blash to show whether Defendant Cape’s decision to

terminate him was motivated by discriminatory animus.

Accordingly, Defendant Cape is entitled to qualified immunity with respect to

Blash’s race-discrimination claim under 42 U.S.C. § 1983. To establish the defense of

qualified immunity, a defendant must first show that he acted within the scope of his

discretionary authority in performing the challenged conduct, and if so, the plaintiff has

the burden to demonstrate that: (1) the defendant violated a constitutional right, and (2)

the right was clearly established at the time of the alleged violation. Morris v. Town of

Lexington, 748 F.3d 1316, 1322 (11th Cir. 2014). “The contour of the right must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). This “clearly established”

prong demands consideration of the law “in light of the specific context of the case, not

as a broad general proposition.” Rioux v. City of Atlanta, 520 F.3d 1269, 1282 (11th Cir.

2008) (quoting Williams Consolidated City of Jacksonville, 341 F.3d 1261, 1269 (11th Cir.

2003)). Generally, a supervisor sued in his individual capacity is entitled to qualified

immunity unless he personally engaged in conduct constituting a constitutional

violation or, based on information known to him, a reasonable supervisor would have

known that his actions were unlawful in light of clearly-established law; in other words,

supervisor liability must be based on something more than the theory of respondeat

superior. See Crawford v. Carroll, 529 F.3d 961, 978–79 (11th Cir. 2008); Greason v. Kemp,

891 F.2d 829, 836–37 (11th Cir. 1990).

It is clearly established that the Equal Protection Clause protects against

intentional discrimination in employment on the basis of race. See generally Lewis I, 918

F.3d 1213 (11th Cir. 2019). When a mixed motive theory of discrimination is advanced,

qualified immunity can still apply because it is clearly established 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.’” Rioux, 520 F.3d at 1283 (discussing

qualified immunity in the mixed motive context). This applies where the record shows

state officials would have acted the same, “even if they had lacked discriminatory

intent.” Id.

In this case, there can be no reasonable dispute that Defendant Cape acted within

his discretionary authority when he fired Blash. Moreover, the record shows that his

decision was not motivated by any personal bias or racial animus, but rather on his

impression of the events surrounding the USPS investigation, thus there is evidence

that Defendant Cape acted at least––in part––by a lawful motive. See Rioux, 520 F.3d at

1284–85 (stating a defendant is entitled to qualified immunity if the undisputed record

shows “that the defendant in fact was motivated, at least in part, by lawful

considerations”). Thus, because Defendant Cape terminated Blash for allegedly

interfering with an investigation, his reasons were lawful and he is entitled to qualified

immunity.

V. CONCLUSION

Based on all of the foregoing, the Court GRANTS Defendants’ Motion for

Summary Judgment [Doc. 64]17 and DIRECTS the Clerk of Court of CLOSE this case.

SO ORDERED, this 30th day of December, 2019.

S/ Tilman E. Self, III

TILMAN E. SELF, III, JUDGE

UNITED STATES DISTRICT COURT

17 The Court previously mentioned its “grave concerns” regarding the Eleventh Amendment with respect

to Blash’s Section 1983 claim asserted against Defendant Brannen in his official capacity. [Doc. 37 at p. 22].

Despite the Court’s clear notice of its intent to address those concerns, neither party addressed the issue.

[Id. at pp. 22–23]. However, as discussed in that Order, the sheriff is an elected, constitutional officer,

subject to the charge of the General Assembly and is not an employee of the county commission.

Manders, 338 F.3d at 1347 (holding that in the context of establishing use-of-force policy and training and

disciplining deputies, a sheriff is an “arm of the state”). Consistent with previous rulings from this

district, “[t]he Court is not holding that [s]heriffs and their employees always act as arms of the state;

however, it is clear that in the context of employment decisions [s]heriffs and their employees are state

officers.” Halliburton v. Peach Cnty. Sheriff’s Dept., No. 5:11-CV-109(MTT), 2012 WL 4468764, at *5 (M.D.

Ga. Sept. 26, 2012) (citing O.C.G.A. § 15-16-23) (Sheriff’s offices are independent of the county in which

they are located with respect to employment decisions and actions). Therefore, because the Eleventh

Amendment prohibits damages suits against state officials acting in their official capacities, the Court also

GRANTS summary judgment to Defendant Brannen on Blash’s Section 1983 claim asserted against him

in his official capacity.