Charles Robert Lee Futch, II v. Chief Matt Libby

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-12648

Non-Argument Calendar

____________________

CHARLES ROBERT LEE FUTCH, II,

Plaintiff-Appellant,

versus

CHIEF MATT LIBBY,

THE CITY OF PORT WENTWORTH,

Defendants-Appellees,

PORT WENTWORTH CITY HALL,

Defendant.

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2 Opinion of the Court 24-12648

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 4:22-cv-00293-RSB-CLR

____________________

Before JILL PRYOR, NEWSOM, and BRASHER, Circuit Judges.

PER CURIAM:

Charles Futch, II, appeals the district court’s order granting

the City of Port Wentworth and Chief of Police Matt Libby’s mo-

tion for summary judgment on his race-discrimination claims,

brought under Title VII of the Civil Rights Act of 1964, the Equal

Protection Clause, and 42 U.S.C. § 1981. 1 He argues that the dis-

trict court erred by determining that the defendants’ proffered

non-discriminatory reasons for firing him from his job as a police

officer were not pretextual because, he says, they did not have

probable cause to believe that Futch had engaged in criminal con-

duct. The facts of the case are known to the parties, and we repeat

them here only as necessary to decide the case. After carefully con-

sidering the record and the parties’ arguments, we affirm.2

1 Futch does not challenge the district court’s rulings on his due-process and

state-law claims and has thus abandoned these issues. Sapuppo v. Allstate Flo-

ridian Ins., 739 F.3d 678, 680–81 (11th Cir. 2014).

2 We review “a district court’s grant of summary judgment de novo, applying

the same legal standards applied by the district court.” Valley Drug Co. v. Ge-

neva Pharms., Inc., 344 F.3d 1294, 1303 (11th Cir. 2003).

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24-12648 Opinion of the Court 3

Title VII prohibits private employers from discriminating, as

relevant here, against an employee based on his race. 42 U.S.C.

§ 2000e-2(a). Under 42 U.S.C. § 1981, employers are similarly pro-

hibited from discriminating against people based on their race dur-

ing the making and enforcing of contracts, including employment

contracts. Webster v. Fulton Cnty., 283 F.3d 1254, 1256 (11th Cir.

2002). Additionally, “[t]he Equal Protection Clause of the Four-

teenth Amendment prohibits race . . . discrimination in public em-

ployment.” Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1312 (11th

Cir. 2018). Employment-discrimination claims brought under Title

VII, § 1981, and the Equal Protection Clause are all “subject to the

same standards of proof and use the same analytical framework.”

Id. at 1312 n.6.

There are two ways that a plaintiff can use circumstantial ev-

idence to make out a case of discrimination. First, a plaintiff can

show a “convincing mosaic of circumstantial evidence that would

allow a jury to infer intentional discrimination by the deci-

sionmaker.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328

(11th Cir. 2011) (quotation marks and citation omitted). Second, a

plaintiff can use the burden-shifting framework set forth in McDon-

nell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Chapter 7 Tr. v.

Gate Gourmet, Inc., 683 F.3d 1249, 1255 (11th Cir. 2012). We address

each method in turn.3

3 Because we agree with the district court’s holding that Futch’s discrimination

claims fail, we need not reach the question of whether Libby is entitled to

qualified immunity.

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4 Opinion of the Court 24-12648

I

A plaintiff may establish a “convincing mosaic” by pointing

to evidence that demonstrates, among other things, (1) “suspicious

timing, ambiguous statements,” or other information from which

discriminatory intent might be inferred, (2) “systematically better

treatment of similarly situated employees,” and (3) “that the em-

ployer’s justification is pretextual.” Lewis v. City of Union City, 934

F.3d 1169, 1185 (11th Cir. 2019) (quotation marks omitted). A

“‘convincing mosaic’” is “a metaphor, not a legal test and not a

framework.” Berry v. Crestwood Healthcare LP, 84 F.4th 1300, 1311

(11th Cir. 2023). If circumstantial evidence of any form “raises a

reasonable inference that the employer discriminated against the

plaintiff, summary judgment is improper.” Smith, 644 F.3d at 1328.

Futch cannot show a convincing mosaic. On appeal, he does

not argue that the timing of his termination was suspicious or that

Libby or other employees of Port Wentworth said or did anything

from which discriminatory intent might be inferred. Further, de-

spite some discussion of this issue in the district court below, he

makes no attempt on appeal to argue that similarly situated em-

ployees were treated better than him. These arguments are there-

fore abandoned. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,

1330 (11th Cir. 2004) (“If an argument is not fully briefed (let alone

not presented at all) to the Circuit Court, evaluating its merits

would be improper both because the appellants may control the

issues they raise on appeal, and because the appellee would have

no opportunity to respond to it.”).

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24-12648 Opinion of the Court 5

Futch does argue that the justification for terminating him

is pretextual, because, he claims, there was no “probable cause for

a warrant to be issued for Mr. Futch’s arrest.” Br. of Appellant at

8. But he doesn’t cite any legal authority in support of his position

that Libby’s alleged failure to satisfy the “arguable probable cause”

standard has any bearing on whether his proffered reasons for firing

Futch were pretextual. And for good reason. “[W]e apply the

standard of ‘arguable probable cause’” in false-arrest claims under

the Fourth Amendment, see Skop v. City of Atlanta, 485 F.3d 1130,

1137 (11th Cir. 2007)—not in employment-law cases like this one.

Here, “[i]n order to show pretext, the plaintiff must demonstrate

that the proffered reason was not the true reason for the employ-

ment decision.” Jackson v. Ala. State Tenure Comm., 405 F.3d 1276,

1289 (11th Cir. 2005) (quotation marks and citation omitted). A

plaintiff “may succeed in this either directly by persuading the court

that a discriminatory reason more likely motivated the employer

or indirectly by showing that the employer’s proffered explanation

is unworthy of credence.” Id. (quotation marks and citation omit-

ted).

Futch has made no attempt to argue along the lines laid out

in Jackson. Nor can he. The summary judgment evidence over-

whelmingly demonstrates that Libby’s proffered reason to fire

Futch was not pretextual. Libby testified that he terminated Futch

due to his inappropriate conduct, because a nearby police depart-

ment—the Hinesville Police Department (HPD)—had informed

him of an incident during which Futch was intoxicated, interfered

with officers’ attempts to arrest a gunman, and made threats. And

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6 Opinion of the Court 24-12648

HPD told Libby that Futch would be criminally charged for his con-

duct. This testimony is consistent with the police reports, body

camera footage, and information Libby received from the HPD.

Therefore, Futch has failed to show a convincing mosaic of inten-

tional discrimination.

II

Under the McDonnell Douglas framework, a plaintiff must

first establish a prima facie case of discrimination by showing that

he (1) “belongs to a protected class,” (2) “was subjected to an ad-

verse employment action,” (3) “was qualified to perform the job in

question,” and (4) his “employer treated ‘similarly situated’ em-

ployees outside [his] class more favorably.” Tynes v. Fla. Dep’t of Juv.

Just., 88 F.4th 939, 944 (11th Cir. 2023) (quoting McDonnell Douglas,

411 U.S. at 802). As already explained, Futch makes no attempt on

appeal to argue that similarly situated employees were treated bet-

ter than him, therefore abandoning the argument. See Access Now,

385 F.3d at 1330. And because proving a similarly situated compar-

ator is a necessary step of making out a prima facie case of discrim-

ination under McDonnell Douglas, Futch has not established a prima

facie case under this framework.

* * *

For these reasons, the district court’s summary judgment or-

der is AFFIRMED.