Thomas v. Pettway

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CEDRICK THOMAS, )

)

Plaintiff, )

)

v. ) Case No.: 2:19-cv-655-ACA

)

MARK PETTWAY, in his official )

capacity as Sheriff of Jefferson )

County, Alabama, )

)

Defendant. )

MEMORANDUM OPINION

Former Jefferson County Sheriff Mike Hale fired his deputy, Cedric Thomas,

for using excessive force in violation of Sheriff’s Office policy. After his

termination, Mr. Thomas sued current Jefferson County Sheriff Mark Pettway in his

official capacity, alleging that the Sheriff’s Office disciplined him more severely

than white and female deputies who engaged in similar uses of force. Mr. Thomas

is a black male. His complaint asserts claims for racial and sex discrimination

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

(“Title VII”).

After discovery, Sheriff Pettway moved for summary judgment (doc. 36),

which has been fully briefed. The court has considered the arguments and evidence

submitted by the parties and WILL GRANT Sheriff Pettway’s motion because Mr.

Thomas failed to establish: (1) a prima facia case of either racial or sex

discrimination; (2) a dispute a material fact about whether the articulated reasons for

terminating his employment were pretextual; and/or (3) a convincing mosaic of

circumstantial evidence from which a trier of fact could infer discriminatory intent.

I. BACKGROUND

On a motion for summary judgment, the court “draw[s] all inferences and

review[s] all evidence in the light most favorable to the non-moving party.”

Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012)

(quotations omitted).

The Sheriff’s Office hired Mr. Thomas as a deputy in January 2014. (Doc. 35-

1 at 2–3 ¶ 3). Mr. Thomas received the department’s policy on use of force when he

was hired. (Id. at 3 ¶ 3; see also doc. 35-4 at 6). Section 4-07.20 of that policy states

that “[a]ny use of force that is not reasonably necessary, in light of the circumstances

confronting the deputy, is prohibited.” (Doc. 35-1 at 26).

The Sheriff’s Office determined Mr. Thomas violated the policy on two

occasions before his termination. In the first instance, Mr. Thomas slammed an

inmate’s head into a door and punched him repeatedly in the head and ribs without

any provocation by the inmate. (Doc. 35-1 at 3 ¶ 5; id. at 12 (first incident video) at

0:00–0:30).

Five months later, Mr. Thomas engaged in a second use of force. (Doc. 35-1

at 3 ¶ 6). Video footage of this incident shows Mr. Thomas escorting an inmate down

a set of stairs when both men fell to the ground and an altercation began. (Id. at 16

(second incident video) at 1:16–1:38). Mr. Thomas punched and kneed the inmate

over eighty times while he laid on the floor. (Doc. 35-1 at 3–4 ¶ 6; id. at 16 (second

incident video) at 1:53–2:54). Mr. Thomas then accused the inmate of assault. (Doc.

35-11 at 4, ¶ 7; id. at 21). But a jail committee reviewed the video footage of the

incident and concluded that although the inmate used abusive or obscene language,

the inmate did not assault Mr. Thomas or disrupt jail security. (Doc. 35-1 at 4 ¶ 7;

id. at 21).

A Sheriff’s Office Captain determined that Mr. Thomas’s use of force in the

second incident was unauthorized, and the Sheriff’s Office placed him on

administrative leave. (Doc. 35-1 at 4 ¶ 8, 23; doc. 41-7 at 2). While he was on leave,

an Assistant Sheriff recommended that the Sheriff’s Office terminate Mr. Thomas

for this use of force. (Doc. 35-1 at 4 ¶ 9).

Several days later, the Sheriff’s Office internal affairs division determined that

Mr. Thomas’s first use of force violated several Sheriff’s Office policies, including

the policy on use of force. (Doc. 35-1 at 3 ¶ 5; id. at 14–15). The internal affairs

division recommended that Mr. Thomas be terminated based on that incident. (Id. at

3 ¶ 5; id. at 14–15).

Mr. Thomas received notice that the Sheriff’s Office intended to take

disciplinary action against him for both uses of force. (Doc. 35-3 at 10–11). Former

Sheriff Hale conducted a hearing on those two matters, during which Mr. Thomas

had the opportunity to address the allegations against him. (Doc. 35-1 at 4 ¶ 10).

Former Sheriff Hale then found Mr. Thomas guilty of violating several Sheriff’s

Office policies, including the policy on use of force, and he terminated Mr. Thomas’s

employment on July 16, 2018. (Id. at 29). The termination letter states that former

Sheriff Hale considered Mr. Thomas’s entire employment history with the Sheriff’s

Office when reaching his decision. (Id.). In addition to the two uses of force against

inmates, Mr. Thomas’s work history included disciplinary action for wrestling with

an inmate for which he served a ten-day suspension in November 2017. (Doc. 35-1

at 3 ¶ 4; see also id. at 11).

Mr. Thomas appealed Sheriff Hale’s termination decision to the Personnel

Board of Jefferson County. (Doc. 35-1 at 5 ¶ 12). During the pendency of Mr.

Thomas’s appeal, Sheriff Pettway was elected Sheriff of Jefferson County. (Id.).

Sheriff Pettway assigned personnel to defend former Sheriff Hale’s termination of

Mr. Thomas. (Id.).

A hearing officer conducted an evidentiary hearing on Mr. Thomas’s appeal

and recommended that the Personnel Board affirm the decision to terminate Mr.

Thomas’s employment. (Doc. 35-3 at 10–26). The hearing officer determined that,

among other policies, Mr. Thomas’s conduct during the two instances of force

violated Sheriff’s Office policy. (Id. at 28–32). The hearing officer explained that,

although the disciplinary actions that Mr. Thomas appealed were not based on his

conduct when he wrestled with an inmate in November 2017, that incident was

“relevant” to the hearing officer’s “consideration of Thomas’s ‘record of service.’”

(Id. at 12 n.3).

The Personnel Board adopted the hearing officer’s recommendation and

upheld Mr. Thomas’s termination. (Doc. 35-3 at 38–39). The Board’s order stated

that Mr. Thomas “was accused of twice using improper force against detainees in

violation of” several Sheriff’s Office policies. (Id. at 38). The order noted that both

instances of excessive force for which Mr. Thomas was terminated occurred after

the Sheriff’s Office previously suspended Mr. Thomas for wrestling with an inmate.

(Id. at 38 n.3).

II. DISCUSSION

In deciding a motion for summary judgment, the court must determine

whether, accepting the evidence in the light most favorable to the non-moving party,

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);

see also Hamilton, 680 F.3d at 1318. “[T]here is a genuine issue of material fact if

the nonmoving party has produced evidence such that a reasonable factfinder could

return a verdict in its favor.” Looney v. Moore, 886 F.3d 1058, 1062 (11th Cir. 2018)

(quotations omitted).

Mr. Thomas asserts claims for racial and sex discrimination pursuant to Title

VII, which makes it illegal for an employer “to discriminate against any individual

with respect to his compensation, terms, conditions, or privileges of employment,

because of such individual’s race[ or] sex.” 42 U.S.C. § 2000e-2(a)(1). (Doc. 1 at 5–

12). Sheriff Pettway moves for summary judgment on both of Mr. Thomas’s claims,

arguing that Mr. Thomas has failed to present evidence creating genuine disputes of

fact about whether the Sheriff’s Office discriminated against him on the basis of race

or sex.

A plaintiff may establish discrimination under Title VII through direct

evidence, circumstantial evidence, or statistical proof. Rioux v. City of Atlanta, 520

F.3d 1269, 1274 (11th Cir. 2008). Mr. Thomas has not presented direct evidence or

statistical proof in support of his claims. (See generally doc. 41). Therefore, the court

must determine whether Mr. Thomas has presented sufficient circumstantial

evidence for a reasonable jury to find that the Sheriff’s Office discriminated against

him because of his race and sex.

Generally, if a plaintiff supports his claim of discrimination with

circumstantial evidence, the court applies the test set out in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). If a plaintiff cannot prove discrimination via

the McDonnell Douglas test, a discrimination claim still may survive summary

judgment if the plaintiff “‘presents a convincing mosaic of circumstantial evidence

that would allow a jury to infer intentional discrimination by the decisionmaker.’”

Jenkins v. Nell, 26 F.4th 1243, 1250 (11th Cir. 2022) (quoting Smith v. Lockheed-

Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)). For purposes of his racial

discrimination claim, Mr. Thomas relies on both theories. (Doc. 41 at 5–8). For

purposes of his sex discrimination claim, Mr. Thomas relies only on the McDonnell-

Douglas test. (Id. at 9).

1. McDonnell Douglas Framework

When proceeding under McDonnell Douglas, a plaintiff must first make out a

prima facie case of discrimination 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 h[is] employer treated ‘similarly

situated’ employees outside h[is] class more favorably.” Lewis v. City of Union City,

918 F.3d 1213, 1220–21 (11th Cir. 2019). If the plaintiff can establish a prima facie

case of discrimination, the burden shifts to the defendant to present evidence

showing a legitimate, non-discriminatory reason for the adverse employment action.

Id. at 1221. If the defendant can satisfy that burden, the plaintiff must present

evidence from which a reasonable jury could find that the proffered reason was

pretext for unlawful discrimination. Id. To establish that a reason was pretextual, the

plaintiff must present evidence “both that the reason was false, and that

discrimination was the real reason.” Springer v. Convergys Customer Mgmt. Grp.

Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (quotations and emphasis omitted).

a. Prima Facie Case

Sheriff Pettway argues that Mr. Thomas cannot establish a prima facie case of

race or sex discrimination because he has not demonstrated the that he was treated

less favorably than similarly situated employees. (Doc. 37 at 8–15). The court

agrees.

To establish the fourth element of a prima facie case, Mr. Thomas must

demonstrate that he and at least one comparator for both his race and sex claims are

“similarly situated in all material respects.” Lewis, 918 F.3d at 1226 (quotations

omitted). In most cases, adequate comparators are those who have been “engaged in

the same basic conduct (or misconduct), . . . subject to the same employment policy,

guideline, or rules, . . . under the jurisdiction of the same supervisor, . . . and [] share

the [same] employment or disciplinary history” as the plaintiff. Lewis, 918 F.3d at

1227–28 (citations omitted). Employees are not similarly situated in all material

respects if they “engaged in different conduct, [] were subject to different policies,

or [] have different work histories.” Id. at 1228

For purposes of his racial discrimination claim, Mr. Thomas’s brief offers the

names of six white deputies—(1) Deputy Kersh, (2) Deputy Junkins, (3) Deputy

O’Neal, (4) Deputy Arceo, (5) Deputy Powell, and (6) Deputy Butler—as

comparators. (Doc. 41 at 6–7). For purposes of his sex discrimination claim, Mr.

Thomas’s brief offers the name of one female deputy—Deputy Johnson—as a

comparator. (Id. at 9).

As explained below, none of these individuals are valid comparators.

Deputy Kersh

Deputy Kersh was involved in two incidents involving inmates. First, on

February 5, 2018, Deputy Kersh sprayed inmates with pepper spray after they

refused to stop fighting. (Doc. 35-3 at 4 ¶ 9.b.; id. at 42–44). A jail commander

reviewed Deputy Kersh’s use of force and deemed it authorized based on the

Sheriff’s Office use of force policy. (Doc. 35-3 at 4 ¶ 9.b.; id. at 42–44).

Second, on June 8, 2018, an inmate struck Deputy Kersh in the face with a

food tray. (Doc. 41-1 at 2). Deputy Kersh “then began trying to defend [him]self

from [the inmate] and [to get] him under control while using verbal commands.”

(Id.). Ultimately, another officer tased and subdued the inmate. (Id.). There is no

evidence in the record indicating whether Deputy Kersh received a use of force

violation for this incident.

Deputy Kersh did not engage in conduct similar to Mr. Thomas. Spraying

inmates with pepper spray and defending oneself and attempting to control an inmate

is materially dissimilar from repeatedly striking one inmate at least twenty times and

striking another inmate over eighty times. (Doc. 35-1 at 3–4 ¶¶ 5–6; doc. 35-3 at 13–

14, 17–18, 38–39). In addition, Mr. Thomas has pointed to no evidence showing that

Deputy Kersh shares his disciplinary history. Mr. Thomas was terminated for using

excessive force against inmates on two separate occasions. (Doc. 35-1 at 3–4 ¶¶ 5–

6, 29; doc. 35-3 at 13–14, 17–18, 38–39). And at the time of Mr. Thomas’s

termination, the Sheriff’s Office previously had suspended him for wrestling with

an inmate. (Doc. 35-3 at 38–39; see also doc. 3-1 at 29).

Accordingly, Deputy Kersh is not a valid comparator for purposes of Mr.

Thomas’s race discrimination claim.

Deputy Junkins

Deputy Junkins was involved in the June 8, 2018 incident with Deputy Kersh.

Deputy Junkins deployed his taser on the inmate to stop him from attacking Deputy

Kersh. (Doc. 41-1 at 2). The record contains no evidence that Deputy Junkins was

investigated or disciplined for this incident, and Deputy Junkins has no record of

violating the Sheriff’s Office policy against excessive force (doc. 35-3 at 4 ¶ 9.a.).

Deputy Junkins tased one inmate on one occasion when the inmate did not

respond to verbal commands to stop fighting. (Doc. 41-1 at 2). This conduct differs

in quality and kind from that of Mr. Thomas who repeatedly struck inmates on two

occasions. (Doc. 35-1 at 3–4 ¶¶ 5–6; doc. 35-3 at 13–14, 17–18, 38–39). In addition,

unlike Mr. Thomas, Deputy Junkins has no disciplinary history of using excessive

force against inmates. (See doc. 35-3 at 4 ¶ 9.a.).

Accordingly, Deputy Junkins is not a valid comparator for purposes of Mr.

Thomas’s race discrimination claim.

Deputy O’Neal

On October 19, 2017, Deputy O’Neal ordered an inmate into isolation after

the inmate flipped over a table. (Doc. 41-2 at 2). As Deputy O’Neal escorted the

inmate to isolation, the inmate “jerked away” from Deputy O’Neal and acted

aggressively towards him. (Id.). Once at the isolation room door, the inmate began

to “pull away” again and threated to punch Deputy O’Neal in the face. (Id.). Deputy

O’Neal and the inmate “got into a scuffle,” and Deputy O’Neal placed the inmate in

a hold until the inmate calmed down. (Doc. 41-2 at 2). Deputy O’Neal then placed

the inmate in handcuffs without further incident. (Id.).

There is no evidence that Deputy O’Neal was investigated or disciplined for

this incident, nor is there evidence of any other incident involving Deputy O’Neal

and an inmate.

Deputy O’Neal did not engage in conduct materially similar to Mr. Thomas.

After getting into a scuffle with an inmate, Deputy O’Neal held the inmate down

until he could place the inmate in handcuffs. (Doc. 41-2 at 2). In comparison, Mr.

Thomas repeatedly struck inmates on two occasions. (Doc. 35-1 at 3–4 ¶¶ 5–6; doc.

35-3 at 13–14, 17–18, 38–39). In addition, unlike Mr. Thomas, Deputy O’Neal has

no record of violating Sheriff’s Office policy against excessive force. (Doc. 35-3 at

4).

Accordingly, Deputy O’Neal is not a valid comparator for Mr. Thomas’s race

discrimination claim.

Deputy Arceo

Deputy Arceo deployed a taser on a noncompliant inmate on two different

occasions. First, on an unspecified date in 2018, Deputy Arceo deployed a taser on

an inmate one time after the inmate threatened him. (Doc. 41-3 at 2). Then, on June

4, 2018, Deputy Arceo drive-stunned an inmate one time after the inmate refused

instructions to return to his cell. (Id. at 3). There is no evidence that Deputy Arceo

was investigated or disciplined for either of these incidents.

Deputy Arceo’s use of force is materially dissimilar from Mr. Thomas’s

conduct. Unlike Mr. Thomas, who repeatedly struck inmates (doc. 35-1 at 3–4 ¶¶ 5–

6; doc. 35-3 at 13–14, 17–18, 38–39), Deputy Arceo deployed a taser on inmates to

try to subdue disruptive or non-complaint behavior (doc. 41-3 at 2–3).

Accordingly, Deputy Arceo is not a valid comparator for Mr. Thomas’s race

discrimination claim.

Deputy Powell

On June 4, 2018, Deputy Powell responded to a fight between inmates. (Doc.

41-4 at 2). After giving both inmates multiple verbal orders to stop fighting, Deputy

Powell tased one of the inmates. (Id.). Because the inmate would not comply with

Deputy Powell’s order to lie flat on the ground, Deputy Powell drive-stunned the

inmate in the back. (Id.). There is no evidence that Deputy Powell was investigated

or disciplined for this incident, nor is there evidence of any other incident involving

Deputy Powell and an inmate.

Deputy Powell’s tasing of an inmate who would not respond to verbal

commands to stop fighting is unlike Mr. Thomas’s two uses of force where he

repeatedly struck inmates. (Doc. 35-1 at 3–4 ¶¶ 5–6; doc. 35-3 at 13–14, 17–18, 38–

39). And unlike Mr. Thomas, Deputy Powell does not have a disciplinary history of

using excessive force. (Doc. 35-3 at 4).

Accordingly, Deputy Powell is not a valid comparator for purposes of Mr.

Thomas’s race discrimination claim.

Deputy Butler

Two years after Mr. Thomas’s termination, Deputy Butler engaged in a

struggle with an inmate during which he kicked the inmate twice while the inmate

was on the ground. (Doc. 41-5 at 4). Sheriff Pettway deemed this an unauthorized

use of force based on Sheriff’s Office policy and suspended Deputy Butler for ten

days. (Id. at 2). At the time, Deputy Butler had one prior disciplinary violation for

which he was suspended for five days. (Id. at 4). The record does not contain

evidence concerning the nature of the conduct for which Deputy Butler was

disciplined on that previous occasion.

To the extent that Mr. Thomas argues that Deputy Butler was treated more

favorably than he was because Deputy Butler was suspended rather than terminated,

this argument fails. Mr. Thomas and Deputy Butler’s misconduct is materially

dissimilar. During an ongoing struggle with an inmate, Deputy Butler kicked the

inmate twice in the upper leg. (Doc. 41-5). The evidence establishes—and Mr.

Thomas does not dispute—that Mr. Thomas struck one inmate at least twenty times

and struck another inmate over eighty times. (Doc. 35-1 at 3–4, ¶¶ 5–6; doc. 35-3 at

38–39). Deputy Butler’s single use of unauthorized force where he kicked an inmate

twice is wholly unlike Mr. Thomas’s conduct.

In addition, Mr. Thomas and Deputy Butler do not share a supervisor who

made the relevant disciplinary decision. Former Sheriff Hale terminated Mr.

Thomas. (Doc. 35-1 at 29). Sheriff Pettway disciplined Deputy Butler. (Doc. 41-5 at

4).

Accordingly, Deputy Butler is not a valid comparator for purposes of Mr.

Thomas’s race discrimination claim.

Deputy Johnson

The only evidence of use of force by Deputy Johnson is Mr. Thomas’s

deposition testimony that “it’s alleged that [Deputy Johnson] not only [t]ased some

[female inmates], but fought with them . . . the way it was described by the supervisor

was that she was throwing the female around.” (Doc. 35-4 at 6).

Accepting as true that Deputy Johnson tased and fought with female inmates

as Mr. Thomas suggests has been alleged by unknown sources, her conduct is not

materially similar to Mr. Thomas’s conduct. Again Mr. Thomas struck an inmate

twenty times on one occasion, and he struck another inmate over eighty times on

another occasion. (Doc. 35-1 at 3–4, ¶¶ 5–6; doc. 35-3 at 38–39). In addition, Deputy

Johnson does not share a disciplinary history with Mr. Thomas because she has no

record of using excessive force. (Doc. 35-3 at 4).

Accordingly, Deputy Johnson is not a valid comparator for purposes of Mr.

Thomas’s sex discrimination claim.

In sum, Mr. Thomas has not presented evidence creating a genuine dispute

about whether he and any of the above deputies are “sufficiently similar, in an

objective sense, that they ‘cannot reasonably be distinguished.’” Lewis, 918 F.3d at

1228 (quoting Young v. United Parcel Serv., Inc., 575 U.S. 206, 231 (2015)). To the

extent that Mr. Thomas asks the court to reconsider Sheriff Hale’s determination that

Mr. Thomas engaged in excessive force in violation of department policy (see doc.

41 at 2 ¶¶ 8–9, citing doc. 41-7), the court declines the invitation. See Flowers v.

Troup Cnty., Ga., Sch. Dist., 803 F.3d 1327, 1338 (11th Cir. 2015) (“Title VII does

not allow federal courts to second-guess nondiscriminatory business judgments, nor

does it replace employers’ notions about fair dealing in the workplace with that of

judges.”). Therefore, Mr. Thomas has not established a prima facie case of racial or

sex discrimination.

b. Legitimate, Non-Discriminatory Reason and Pretext

Even if Mr. Thomas could establish a prima facie case of either racial or sex

discrimination, his claims would still fail because he presents no evidence that the

legitimate, non-discriminatory reason for his termination are pretext for

discrimination.

Here, Sheriff Hale terminated Mr. Thomas’s employment because he was

found guilty of violating Sheriff’s Office policy against use of excessive force on

two occasions. (Doc. 35-1 at 29; doc. 35-3 at 10–11). This is a legitimate, non-

discriminatory reason for terminating Mr. Thomas’s employment. Therefore, the

burden shifts back to Mr. Thomas to provide evidence that this reason is false and

pretext for unlawful discrimination. See Springer, 509 F.3d at 1348.

First, Mr. Thomas fails to present evidence that the legitimate,

non-discriminatory reason for terminating his employment is false. Indeed, Mr.

Thomas does not dispute that he engaged in two separate uses of force; he simply

disagrees with Sheriff Hale’s determination that his use of force in each of those

instances was excessive and in violation of Sheriff’s Office policy. (See doc. 41 at 2

¶¶ 8–9, 11). But if “the proffered reason is one that might motivate a reasonable

employer,” an employee “cannot succeed by simply quarreling with the wisdom of

that reason,” and the employee “is not allowed to recast an employer’s proffered

nondiscriminatory reasons or substitute his business judgment for that of the

employer.” Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000).

Second, even if Sheriff Hale’s reason for terminating Mr. Thomas’s

employment was false, Mr. Thomas has presented no evidence demonstrating that

Sheriff Hale’s reason for terminating him was pretext for unlawful discrimination.

Mr. Thomas’s brief offers no argument with respect to pretext for his sex

discrimination claim, and his brief fares only marginally better with respect to his

racial discrimination claim. (Doc. 41 at 5–9).

Mr. Thomas’s brief does not mention the word “pretext.” (See generally doc.

41). Therefore, it is difficult for the court to discern what evidence—if any—

Mr. Thomas relies on to prove that racial discrimination was the real reason for his

termination. To the extent Mr. Thomas claims that the proffered reasons for his

termination are pretext because the Sheriff’s Office did not treat other white deputies

similarly (id. at 6–7), this evidence is insufficient. A plaintiff may use evidence

“necessary and proper to support” a prima facie case to show that an employer’s

explanations for its conduct are pretextual. Lewis, 918 F.3d at 1229. But as explained

above, see supra pp. 9–16, the decision to treat Mr. Thomas differently than his

identified comparators does not raise an inference of discriminatory intent.

Mr. Thomas’s brief also points to text messages from Sheriff Pettway—sent

before he was elected Sheriff—in which Sheriff Pettway “himself gave [Mr.

Thomas] several names of white deputies he believed were treated more favorably,

including Cliff Avery, Jeff Hall, and Lloyd Brasher.” (Doc. 41 at 8). Mr. Thomas’s

brief mischaracterizes the content of the text messages between Sheriff Pettway and

Mr. Thomas. According to the screenshots Mr. Thomas submitted with his brief, Mr.

Thomas texted Sheriff Pettway on September 2, 2018 and asked if he “kn[e]w of any

instances of use of [f]orce involving white deputies.” (Doc. 41-6 at 27–28). A few

days later, Sheriff Pettway gave Mr. Thomas the names of Cliff Avery, Jeff Hall,

and Lloyd Brasher. (Id. at 32). The text messages do not support Mr. Thomas’s

contention that Sheriff Pettway believed those deputies were treated more favorably,

and in any event, Mr. Thomas has submitted no evidence regarding the

circumstances under which those deputies engaged in use of force or what discipline,

if any, they received.

Mr. Thomas also points to his own testimony concerning a conversation that

he had with Sheriff Pettway before Sheriff Pettway’s election as Sheriff. (Doc. 41 at

8). Mr. Thomas testified that he had a discussion with Sheriff Pettway regarding his

termination and that Sheriff Pettway “stated that he supported me and thought that

it was racially based.” (Doc. 35-4 at 7).

Accepting Mr. Thomas’s testimony as true, the conversation with Sheriff

Pettway does not provide evidence of intentional discrimination on the part of

anyone involved in the decision to terminate Mr. Thomas’s employment. The

conversation occurred prior to Sheriff Pettway’s election as Sheriff, and it was

Former Sheriff Hale—not Pettway—who was the decisionmaker responsible for Mr.

Thomas’s termination. (See doc. 35-1 at 29). Even if Sheriff Pettway believed at the

time of Mr. Thomas’s termination that the Sheriff’s Office discriminated against Mr.

Thomas, Mr. Thomas has not cited, and the court has not located, any binding

authority standing for the proposition that a fellow employee’s belief that an

employment action was discriminatory, without more, is sufficient to establish

pretext. Sheriff Pettway testified that he “was not part of the termination hearing”

and that after he became the Sheriff and reviewed the case, he “did not see any

discrimination.” (Doc. 41-6 at 17). Mr. Thomas offers no evidence to contradict this

testimony.

Accordingly, Mr. Thomas has not demonstrated that the legitimate, non-

discriminatory reason for terminating his employment was pretext for unlawful

discrimination, and his claims for both racial discrimination and sex discrimination

fail under McDonnell Douglas.

2. Convincing Mosaic

Mr. Thomas alternatively argues that, even if he fails to establish his racial

discrimination claims under the McDonnell Douglas framework, he has presented a

convincing mosaic of circumstantial evidence from which a trier of fact could infer

that Sheriff Hale terminated him because of his race. (Doc. 41 at 8).

“Aside from the McDonnell Douglas framework, an employee can still

survive summary judgment by presenting “circumstantial evidence that creates a

triable issue concerning the employer’s discriminatory intent.” Jenkins, 26 F.4th at

1250 (quoting Smith, 644 F.3d at 1328). “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 may be inferred, (2) ‘systematically better treatment of similarly situated

employees,’ and (3) pretext.” Id. at 1250 (quoting Lewis, 934, F.3d at 1185).

Mr. Thomas argues that he has demonstrated a convincing mosaic of

circumstantial evidence because the Sheriff’s Office did not discipline or terminate

white deputies he alleges engaged in similar uses of force and because “Sheriff

Pettway himself believed that [Mr. Thomas] had been subjected to racial

discrimination.” (Doc. 41 at 8). The court has already explained how this evidence

is insufficient for a trier of fact to infer intentional discrimination. See supra pp. 9–

16, 18–19. That analysis applies equally here.

Accordingly, Mr. Thomas’s racial discrimination claim fails under the

circumstantial mosaic theory.

Hl. CONCLUSION

The court WILL GRANT Sheriff Pettway’s motion for summary judgment

and WILL ENTER SUMMARY JUDGMENT in favor of Sheriff Pettway on Mr.

Thomas’s race and sex discrimination claims.

The court will enter a separate order consistent with this memorandum

opinion.

DONE and ORDERED this October 20, 2022.

fo

UNITED STATES DISTRICT JUDGE

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