USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 1 of 19
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
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No. 22-13875 Non-Argument Calendar ____________________
CEDRICK THOMAS, Plaintiff-Appellant, versus SHERIFF OF JEFFERSON COUNTY, ALABAMA,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 2:19-cv-00655-ACA USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 2 of 19
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Before ROSENBAUM, JILL PRYOR, and BRASHER, Circuit Judges. PER CURIAM: Cedrick Thomas appeals the district court’s order granting summary judgment in favor of Mark Pettway in his official capacity as Sheriff of Jefferson County, Alabama, on Thomas’s race and sex discrimination claims under Title VII of the Civil Rights Act of 1964. Thomas argues that the district court erroneously deter- mined that the deputies outside of his protected class who received more favorable treatment were not valid comparators for his race and sex discrimination claims. He also argues that the district court erred in finding that the reason given by Pettway for his firing was not pretextual. Thomas last argues that the district court errone- ously determined he did not present a “convincing mosaic” of cir- cumstantial evidence of discrimination. Based on our review of the record, we hold that Thomas’s arguments fail and affirm the dis- trict court’s grant of summary judgment. I.
Thomas—an African American male—was an employee of the Jefferson County Sheriff’s Office in Jefferson County, Alabama, serving as a deputy sheriff starting in January 2014. During his time as an employee of that office, the Sheriff of Jefferson County was Sheriff Mike Hale. Thomas was charged three times with unauthorized use of force against inmates of the Bessemer Jail, where he worked. In USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 3 of 19
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early November 2017, Thomas entered an inmate’s cell and wres- tled with him, resulting in injury to the inmate. This was captured by jail security video, and Thomas was suspended for ten days by Sheriff Hale following an uncontested excessive force charge against Thomas. Just a short time later, on November 25, 2017, Thomas slammed another inmate’s head into the jail slider door and repeatedly punched him. This was also captured on jail secu- rity video, and the internal investigation recommended that Thomas be terminated. Lastly, in April 2018, Thomas beat an inmate while he was in his cell. The Jefferson County Sheriff’s Office conducted an in- ternal investigation into this incident, involving an analysis of secu- rity footage as well as Thomas’s and the inmate’s statements. That investigation found that Thomas used significant force against the inmate, striking the inmate over eighty times while the inmate was in the fetal position. Moreover, the investigation found that the in- mate had neither assaulted Thomas nor disrupted security. Thus, the investigation determined that Thomas’s use of force was unau- thorized, and the internal investigators again recommended his ter- mination. Sheriff Hale held a hearing to provide Thomas with an op- portunity to address the excessive use of force charges against him. After that hearing, Sheriff Hale terminated Thomas, effective July 16, 2018. Thomas appealed his termination to the Personnel Board of Jefferson County, but that appeal was stayed due to a criminal USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 4 of 19
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assault charge against him in state court for this last incident. In the meantime, Mark Pettway was elected Sheriff of Jefferson County, Alabama. And after Thomas’s criminal case and Sheriff Pettway’s review of the evidence, Sheriff Pettway pursued the resolution of Thomas’s still pending internal appeal, which he inherited from Sheriff Hale. Sheriff Pettway assigned employees to defend Sheriff Hale’s termination of Thomas at an appeal hearing before the Per- sonnel Board of Jefferson County in November 2021. The Person- nel Board of Jefferson County sustained Thomas’s termination. Then, Thomas brought race-based and sex-based discrimi- nation claims under Title VII of the Civil Rights Act of 1964 against Sheriff Pettway, who is still the Sheriff of Jefferson County, Ala- bama. Thomas claims that similarly situated white deputies and similarly situated female deputies have not been disciplined for us- ing similar force and that he has been discriminated against because of his race (African American) and sex (male). After examining the evidence submitted along with a motion for summary judgment and the response to that motion, the district court granted sum- mary judgment to Sheriff Pettway. Thomas appeals. II.
We review de novo the grant of summary judgment. See An- thony v. Georgia, 69 F.4th 796, 804 (11th Cir. 2023) (citing Ave. CLO Fund, Ltd. v. Bank of Am., NA, 723 F.3d 1287, 1293 (11th Cir. 2013)). Summary judgment should be granted only if there is no genuine dispute of material fact, see id. (quoting Fed. R. Civ. P. 56(a)), and the party “is entitled to judgment as a matter of law.” Fed. R. Civ. USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 5 of 19
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P. 56(a); see also Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A genuine issue of material fact exists if suffi- cient evidence is submitted for a jury to return a verdict for the nonmovant. See Stewart, 117 F.3d at 1284–85 (citing Anderson v. Lib- erty Lobby, Inc., 477 U.S. 242, 249 (1986)). “When assessing the suf- ficiency of the evidence in favor of the nonmoving party, we must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party.” Id. at 1285 (citing Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 918 (11th Cir. 1993)). “We are not obliged, however, to deny summary judgment for the moving party when the evidence favoring the nonmoving party is merely colorable or is not significantly probative.” Id.; see also Baxter v. Roberts, 54 F.4th 1241, 1253 (11th Cir. 2022) (“To de- feat summary judgment, ‘a mere scintilla of evidence supporting the opposing party’s position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.’” (quotation marks omitted and alteration adopted in original) (quot- ing Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1134 (11th Cir. 2020) (en banc))). While “a litigant’s self-serving statements based on personal knowledge or observation can defeat summary judgment,” United States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018) (citing Feliciano v. City of Miami Beach, 707 F.3d 1244, 1254 (11th Cir. 2013); Price v. Time, Inc., 416 F.3d 1327, 1345 (11th Cir.), modified on other grounds on denial of reh’g, 425 F.3d 1292 (11th Cir. 2005)), “un- substantiated assertions alone are not enough to withstand a USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 6 of 19
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motion for summary judgment,” Anthony, 69 F.4th at 804 (quoting Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987)). III.
Title VII makes it illegal to fire any individual because of that individual’s race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a)(1). This circuit recognizes three ways to estab- lish intentional discrimination through a disparate treatment claim under Title VII: (1) “present[ing] direct evidence of discriminatory intent,” Lewis v. City of Union City (Lewis I), 918 F.3d 1213, 1220 n.6 (11th Cir. 2019) (en banc) (citing Jefferson v. Sewon Am., Inc., 891 F.3d 911, 921–22 (11th Cir. 2018)); (2) succeeding under the McDonnell Douglas framework, see id. at 1220 (citing generally McDonnell Doug- las Corp. v. Green, 411 U.S. 792 (1973)); and (3) “demonstrat[ing] a ‘convincing mosaic’ of circumstantial evidence that warrants an in- ference of intentional discrimination,” see id. at 1220 n.6 (quoting Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)). Statistical data may also be used in a Title VII claim that alleges a pattern or practice of discrimination. See Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990). Because of this legal framework and the fact that Thomas has neither presented direct evidence of discrimination nor made a statistical argument, we will address Thomas’s comparator arguments under the McDonnell Douglas framework before separately addressing Thomas’s “con- vincing mosaic” arguments. USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 7 of 19
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A. McDonnell Douglas Framework
“In [most] cases where direct evidence of employment dis- crimination is lacking, we analyze the claim under the McDonnell Douglas framework.” Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1347 (11th Cir. 2007) (citing McDonnell Douglas Corp., 411 U.S. at 802). The McDonnell Douglas framework first requires the plaintiff to establish a prima facie case of discrimination, then requires the defendant to proffer a nondiscriminatory reason for the employment decision, and last requires the plaintiff to establish that the proffered reason was pretextual. See McDonnell Douglas Corp., 411 U.S. at 801–05; Lewis I, F.3d at 1220–21. The prima facie case requires: (1) membership in a protected class; (2) an adverse employment action; (3) qualification for the job; and (4) “that [the] [] employer treated ‘similarly situated’ em- ployees outside [the plaintiff’s] [] class more favorably.” Lewis I, 918 F.3d at 1221 (citing Holifield v. Reno, 115 F.3d 1555, 1561–62 (11th Cir. 1997)); see also id. at 1220–21 (citing Holifield, 115 F.3d at 1561– 62). Courts often refer to the “similarly situated” individual as a “comparator.” Id. at 1217 (citing Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 258–59 (1981)). A fellow employee is “similarly situated” when they are “similarly situated in all material respects,” id. at 1224, which means “that they ‘cannot reasonably be distinguished,’” id. at 1228 (quoting Young v. United Parcel Serv., Inc., 575 U.S. 206, 231 (2015)). This generally requires the comparator to (1) “have engaged in the same basic conduct (or misconduct) as the plaintiff,” id. at 1227 USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 8 of 19
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(citing Mitchell v. Toledo Hosp., 964 F.2d 577, 580, 583 (6th Cir. 1992)); (2) “have been subject to the same employment policy, guideline, or rule as the plaintiff,” id. (citing Lathem v. Dep’t of Child. & Youth Servs., 172 F.3d 786, 793 (11th Cir. 1999)); (3) “have been under the jurisdiction of the same supervisor as the plaintiff,” id. at 1227–28 (citing Jones v. Gerwens, 874 F.2d 1534, 1541 (11th Cir. 1989)); and (4) “share the plaintiff’s employment or disciplinary his- tory,” id. at 1228 (citing Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 304 (6th Cir. 2016)). To determine whether the misconduct was basically the same, we consider both the number and nature of acts of misconduct. See Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1318 (11th Cir. 2003). Applying this case law to Thomas’s race and sex discrimina- tion claims, we cannot say that Thomas has made out a prima facie case of discrimination. Thomas successfully meets three of the prima facie case requirements. First, Thomas is African American and male, which are both protected classes under Title VII. See 42 U.S.C. § 2000e-2(a)(1) (listing race and sex among other classes); Lewis I, 918 F.3d at 1220 (citing Holifield, 115 F.3d at 1561–62). Sec- ond, Thomas was subjected to an adverse employment action when he was fired. See Lewis I, 918 F.3d at 1221. Third, no one has disputed that Thomas was qualified for the position as a deputy sheriff. See id. at 1220–21 (citing Holifield, 115 F.3d at 1561–62). The dispute centers around Thomas’s identification of proper compar- ators, which he fails to do. USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 9 of 19
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1. Race-based Discrimination Claim
As to his race discrimination claim, Thomas’s proposed comparators were not similarly situated. On appeal, Thomas limits his race-based discrimination comparator arguments to six white, male deputies: Deputies Kersh, Junkins, O’Neal, Arceo, Powell, and Butler. But Thomas had a distinct disciplinary history that these white deputies did not have, and he engaged in distinct mis- conduct from these white deputies. Thomas had violated the use of force policy three times before he was fired and had committed severe misconduct by striking an inmate eighty times while the in- mate was in the fetal position. We will briefly walk through the differences between Thomas’s disciplinary history and misconduct and those of his pro- posed white comparators. Three of Thomas’s proposed white comparators—Deputies Junkins, O’Neal, and Powell—had no record of use of force viola- tions during the period of Thomas’s employment, according to the affidavit of the head of internal affairs for the sheriff’s office. Junkins was involved in an incident in which he tased an inmate who was fighting Deputy Kersh. O’Neal got into a scuffle with an inmate who pulled away from him and threatened to punch him, and O’Neal placed the inmate in a hold until the inmate calmed down—and subsequently placed the inmate in handcuffs. Powell tased an inmate who would not stop fighting another inmate and lie flat on the ground. The record contains no evidence that any of these three deputies was investigated or disciplined for these USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 10 of 19
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events, and none of these deputies has a record of violating the ex- cessive force policy. This distinguishes their disciplinary histories from Thomas’s history. Thomas’s three incidents where he used force are also much different in terms of the type of conduct, espe- cially his use of force to strike an inmate over eighty times. Another proposed comparator, Deputy Arceo, once tased an inmate who threatened him; and another time he drive-stunned an inmate after the inmate refused to return to his cell upon being in- structed to do so. Notably, the record contains no evidence that Deputy Arceo was investigated or disciplined for his two incidents in which he used force. This distinguishes his disciplinary history from Thomas’s history. Arceo’s use of force was also very different from Thomas’s in type, and we cannot conclude that Arceo’s ac- tions are misconduct on this record. Deputy Kersh was investigated after pepper spraying some fighting inmates, but that use of force was determined to be au- thorized. Similarly, Deputy Kersh’s other incident involved him de- fending himself after being struck in the face with a food tray; and Kersh was not even the officer who tased and subdued the inmate during that incident. The record contains no evidence about whether Kersh received a use of force violation for the second inci- dent. In short, Kersh had one authorized use of force event fol- lowed by an event in which the record does not say what the result was—but in which any force Kersh used was in self-defense based on this record. This is very different from Thomas’s history of vio- lent misconduct and subsequent punishment. Moreover, Thomas’s USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 11 of 19
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incident involved the unauthorized hitting of an inmate eighty times, which is far different and more severe than Kersh’s author- ized pepper spraying. The record establishes that Deputy Butler has been disci- plined twice. First, Butler was suspended for five days for a discipli- nary violation, but we do not know the nature of the misconduct. Second, Butler was suspended for ten days for an unauthorized use of force after he kicked an inmate twice during a struggle with the inmate. However, Thomas had already had two incidents of mis- conduct before the third misconduct for which he was fired. Addi- tionally, hitting an inmate eighty times is a significantly more se- vere use of force than hitting an inmate twice. Thus, Thomas had a longer history of misconduct and more severe misconduct than Butler. Thomas thus had a longer history of misconduct than each of the proffered white deputies. Therefore, these white deputies did not “share the plaintiff’s employment or disciplinary history.” Lewis I, 918 F.3d at 1228 (citing Tennial, 840 F.3d at 304). Moreover, Thomas’s conduct was more severe than that of the other deputies named as possible comparators. Thomas struck the inmate more than eighty times, which was far more severe than the authorized use of pepper spray or a taser or the unauthorized kicking of an inmate twice. Because we consider both the number and nature of acts of misconduct to determine whether the misconduct was ba- sically the same, we conclude that the proffered white deputies did not have basically the same misconduct as Thomas. See Knight, 330 USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 12 of 19
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F.3d at 1318. Consequently, none of the deputies named by Thomas was similarly situated for purposes of his race-based dis- crimination claim. Because Thomas has not presented evidence of better treatment of similarly situated comparators, Thomas fails to establish a prima facie case of race-based discrimination. 2. Sex-based Discrimination Claim
As to his sex discrimination claim, Thomas’s proffered com- parator—Deputy Johnson (an African American woman)—was not similarly situated. Johnson had zero use of force charges or viola- tions in her work history during the period of Thomas’s employ- ment. Moreover, Thomas’s only evidence of use of force by John- son is his deposition testimony that he had heard of allegations by a supervisor that Johnson fought with and threw around a female inmate and had tased some inmates. It is true that “a litigant’s self- serving statements based on personal knowledge or observation can defeat summary judgment.” Stein, 881 F.3d at 857 (citing Felici- ano, 707 F.3d at 1254; Price, 416 F.3d at 1345). But “unsubstantiated assertions alone are not enough to withstand a motion for sum- mary judgment.” Anthony, 69 F.4th at 804 (quoting Rollins, 833 F.2d at 1529). Thomas has no evidence that Johnson engaged in the same basic misconduct as Thomas or has a similar disciplinary his- tory. Therefore, Johnson is not a valid comparator for Thomas’s sex discrimination claim. Because Thomas has not presented evi- dence of better treatment of similarly situated comparators, Thomas fails to establish a prima facie case of sex-based discrimina- tion. USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 13 of 19
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3. Result Under McDonnell Douglas Framework
Because none of the comparators proffered by Thomas was “similarly situated in all material respects,” the district court did not err in concluding that he had failed to present a prima facie case of either race-based or sex-based discrimination. Therefore, Thomas does not succeed under the McDonnell Douglas framework. B. “Convincing Mosaic” Framework
In addition to presenting direct evidence or succeeding un- der the McDonnell Douglas framework, a former or current em- ployee can survive summary judgment on a disparate treatment claim by presenting enough circumstantial evidence to create a tri- able issue about the employer’s discriminatory intent. See Jenkins v. Nell, 26 F.4th 1243, 1250 (11th Cir. 2022) (quoting Smith, 644 F.3d at 1328). “A triable issue of fact exists [in a Title VII case] if the rec- ord, viewed in a light most favorable to the plaintiff, presents a con- vincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker.” Id. (in- ternal quotation marks omitted in original) (quoting Smith, 644 F.3d at 1328). A “convincing mosaic” may be shown by “evidence that demonstrates, among other things, (1) suspicious timing, ambigu- ous statements, or other information from which discriminatory intent may be inferred, (2) ‘systematically better treatment of sim- ilarly situated employees,’ and (3) pretext.” Id. (quoting Lewis v. City of Union City (Lewis II), 934 F.3d 1169, 1185 (11th Cir. 2019)). USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 14 of 19
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We have held that within the “convincing mosaic” framework, “[a] plaintiff can show pretext by” (a) “casting sufficient doubt on the defendant’s proffered nondiscriminatory reasons to permit a rea- sonable fact finder to conclude that the employer’s proffered rea- sons were not what actually motivated its conduct,” (b) “showing that the employer’s articulated reason is false and that the false rea- son hid discrimination,” or (c) “establishing that the employer has failed to clearly articulate and follow its formal policies.” Lewis II, 934 F.3d at 1186 (citing Lewis I, 918 F.3d at 1257 (Rosenbaum, J., concurring in part and dissenting in part)). But establishing pretext alone is not enough for a plaintiff to survive summary judgment: “a reason is not pretext for discrimi- nation ‘unless it is shown both that the reason was false, and that discrimination was the real reason.’” Springer, 509 F.3d at 1349 (quoting Brooks v. Cnty. Comm’n, 446 F.3d 1160, 1163 (11th Cir. 2006)). That is, a plaintiff must still identify evidence of discrimina- tion within the “convincing mosaic” framework—even if it need not always be established to call an explanation “pretextual” under the “convincing mosaic” case law—because the whole “convincing mosaic inquiry is identical to the final stage of the McDonnell Doug- las framework: both ask whether there is enough evidence for a reasonable jury to infer intentional discrimination.” See Ossmann v. Meredith Corp., ––– F.4th ––––, ––––, No. 22-11462, 2023 WL 5809642, at *9 (11th Cir. Sept. 8, 2023) (citing Smith, 644 F.3d at 1328; Bailey v. Metro Ambulance Servs., Inc., 992 F.3d 1265, 1273 n.1 (11th Cir. 2021)). When analyzing circumstantial evidence under the “convincing mosaic” framework, we have considered whether USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 15 of 19
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there was animus against non-comparators in the plaintiff’s pro- tected class, see Jenkins, 26 F.4th at 1251, whether the employer had a reason to discriminate such as to counteract a public perception of leniency, Smith, 644 F.3d at 1344–45, and whether the decision was extraordinarily arbitrary, Lewis II, 934 F.3d at 1185–86, 1189. Again, we must approach the convincing mosaic inquiry in a holistic manner, looking for evidence of discrimination. But “Ti- tle VII does not empower a court (or jury) to ‘sit as a super-person- nel department that reexamines an entity’s business decisions.’” Gogel, 967 F.3d at 1143 (quoting Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991)). The issue is not whether the facts underlying the discharge are true but whether the employer be- lieved them. See id. at 1148 (“[W]hen assessing whether an em- ployer has properly imposed an adverse action on an employee based on that employee’s conduct, the question is not whether the employee actually engaged in the conduct[] but instead whether the employer in good faith believed that the employee had done so.”). 1. Race-based Discrimination Claim
Here, there is no evidence in the record of animus against other African American employees. Nor is there any evidence in the record that the Jefferson County Sheriff’s Office had a reason to discriminate. As discussed above, none of the deputies named by Thomas was similarly situated. The differential treatment of other deputies is explained by their different disciplinary histories and conduct. USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 16 of 19
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The fact that the office sometimes paid settlements in lawsuits aris- ing from deputies’ actions is irrelevant. Moreover, the decision to fire Thomas with a more extensive history of misconduct in the face of a very serious infraction is reasonable—even if other depu- ties with less serious misconduct and lesser histories of misconduct were not fired. This is completely consistent. Thus, the deputies’ differential treatment is not inconsistent with the reason proffered by Pettway, and these facts do not give rise to an inference of dis- crimination. And there is no evidence that the reason for Thomas’s firing proffered by Pettway was pretextual. Thomas did not identify any weakness, implausibility, or inconsistency in Pettway’s explanation that Thomas was fired because he had two prior use of force inci- dents and had struck an inmate over eighty times when that inmate had neither assaulted Thomas nor disrupted security. There is nothing suspect about this explanation, so Thomas fails to establish that the explanation given for firing him was pretextual. Even accepting as true—as we must at this stage—Thomas’s testimony that Pettway once expressed an opinion that Thomas’s firing was racially based, Thomas still fails to establish pretext for discrimination. That statement was before Pettway’s election as sheriff, Pettway was on leave at the time because he was running for sheriff, and Pettway was not a decisionmaker in Thomas’s case. Pettway had no personal knowledge about the circumstances lead- ing to Thomas’s firing, which was done by former Sheriff Hale. Thus, Thomas’s statement—accepted as true—does not support an USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 17 of 19
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inference that discrimination occurred because Pettway had no knowledge with which to support that statement, and he allegedly made that statement when he was merely a fellow employee at the sheriff’s office. After Pettway became sheriff and reviewed the case, he thought that there was no discrimination and agreed with the termination. Furthermore, Thomas’s termination was not extraordinar- ily arbitrary. Firing him for his repeated violent acts and breaches of policy is not arbitrary. Instead, the decision to terminate him given his history and the severity of his conduct is a logical decision in line with the office’s other employment decisions. Thomas fails to establish pretext and especially fails to establish pretext for dis- crimination. Therefore, the district court did not err in finding that Thomas failed to establish Pettway’s proffered reason was pre- textual. Based on these considerations, the district court properly de- termined that Thomas did not present a convincing mosaic of cir- cumstantial evidence of discrimination. Therefore, Thomas’s “con- vincing mosaic” argument related to his race-based discrimination claim fails. 2. Sex-based Discrimination Claim
Thomas has abandoned and forfeited the “convincing mo- saic” issue with respect to his sex discrimination claim. We have held that, “[t]ypically, issues not raised in the initial brief on appeal are deemed abandoned.” United States v. Campbell, 26 F.4th 860, 871 (11th Cir. 2022) (en banc) (citing United States v. Levy, 379 F.3d 1241, USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 18 of 19
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1242–45 (11th Cir. 2004)). But we have further held that “the mere failure to raise an issue in an initial brief on direct appeal should be treated as a forfeiture of the issue, and therefore the issue may be raised by the court sua sponte in extraordinary circumstances after finding that one of our Access Now forfeiture exceptions applies.” Id. at 873 (citing generally Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324 (11th Cir. 2004)). “[W]e have identified five situations in which we may exercise our discretion to consider a forfeited issue”: (1) “the issue involves a pure question of law and refusal to con- sider it would result in a miscarriage of justice”; (2) “the party lacked an opportunity to raise the issue at the district court level”; (3) “the interest of substantial justice is at stake”; (4) “the proper resolution is beyond any doubt”; or (5) “the issue presents signifi- cant questions of general impact or of great public concern.” Id. (citing Access Now, Inc., 385 F.3d at 1332; United States v. Godoy, 821 F.2d 1498, 1504 (11th Cir. 1987)). To be clear, we need not address a forfeited issue even if one or more Access Now forfeiture exceptions apply. See id. (“The degree to which we adhere to the prudential practice of forfeiture and the conditions under which we will excuse it are up to us as an appel- late court.” (citing J. Dickson Phillips, Jr., The Appellate Review Func- tion: Scope of Review, 47 Law & Contemp. Probs. 1, 3 (1984))). Find- ing that one of the Access Now forfeiture exceptions applies is a nec- essary, but not a sufficient, condition to resurrecting an issue for- feited on appeal. “To consider an issue [that is] abandoned on ap- peal, whether on a party’s motion or sua sponte, we must first find that one of our forfeiture exceptions applies and then decide USCA11 Case: 22-13875 Document: 30-1 Date Filed: 10/06/2023 Page: 19 of 19
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whether the issue is extraordinary enough for us to exercise our discretion and excuse the forfeiture.” Id. at 874–75 (footnote omit- ted). “In most cases, an issue abandoned on appeal should [] be dis- missed without reaching the merits.” Id. at 875. Thomas’s brief only discusses the “convincing mosaic” framework in terms of his race-based discrimination claim. Like- wise, Thomas’s brief only discusses his pretext arguments in terms of his race-based discrimination claim. Thus, Thomas has forfeited these issues with respect to his sex-based discrimination claim. Here, none of the Access Now factors applies; and this is not an ex- traordinary circumstance such that we should resurrect this for- feited issue. Therefore, we will not excuse Thomas’s forfeiture of these issues. Thus, Thomas has abandoned and forfeited on appeal his “convincing mosaic” arguments and their concomitant pretext arguments related to his sex discrimination claim. 3. Result Under “Convincing Mosaic” Framework
Thomas’s race-based discrimination claim fails substantively under the “convincing mosaic” framework, and Thomas has aban- doned and forfeited on appeal the issue of analyzing his sex discrim- ination claim under the “convincing mosaic” framework. There- fore, Thomas’s claims cannot survive summary judgment under the “convincing mosaic” framework. IV.
For the reasons stated above, we AFFIRM the district court’s grant of summary judgment.