USCA11 Case: 20-10337 Date Filed: 04/21/2021 Page: 1 of 26
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-10337 Non-Argument Calendar ________________________
D.C. Docket No. 5:17-cv-00380-TES
JOHNNY BLASH,
Plaintiff-Appellant,
versus
CITY OF HAWKINSVILLE AND PULASKI COUNTY GEORGIA SHERIFF'S OFFICE, et al.,
Defendants,
WILLIAM B. CAPE, Executor of the Estate of Billy Cape deceased, DANNY BRANNEN, Individually and in his Official Capacity as Sheriff, Pulaski County, Georgia,
Defendants-Appellees. USCA11 Case: 20-10337 Date Filed: 04/21/2021 Page: 2 of 26
________________________
Appeal from the United States District Court for the Middle District of Georgia ________________________
(April 21, 2021)
Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Johnny Blash, who worked as a deputy in the Pulaski County Sheriff’s
Office, appeals the district court’s (1) grant of summary judgment for the
defendants on his discriminatory discharge claims against Danny Brannen, in his
official capacity as the current Sheriff, and former Sheriff Billy Cape (now
deceased) in his individual capacity, and (2) dismissal of his race discrimination
claim against Brannen in his individual capacity for failure to state a claim.
I.
Blash, who is African American, worked as a deputy sheriff in the Pulaski
County Sheriff’s Office from 2010 until he was fired on December 1, 2014 by
then-Sheriff Cape, who was Caucasian. Brannen, who is also Caucasian, held the
position of Captain at the time and was Blash’s supervisor.
Brannen demonstrated racial bias against African Americans by using the
word “n***er” to refer to African Americans on several occasions and by making
2 USCA11 Case: 20-10337 Date Filed: 04/21/2021 Page: 3 of 26
other racially derogatory comments while on the job at the Sheriff’s Office.1 For
example, during a dispute with an African-American businessman about whether
the man had a business license, Brannen said to the man, “You know how you can
tell if a black person is lying?” When the man’s wife responded, “How?” Brannen
said, “If they are black and moving their lips.”
Sheriff Cape was aware of and condoned—or at least tolerated—Brannen’s
racial bias. Cape was present on one occasion when Brannen was discussing a call
by an African-American civilian and referred to the caller as a “dumbass n***er.”
When a deputy who was also present objected to Brannen’s racist language, Cape
just laughed and Brannen kept talking. One time, during a “town hall” meeting at
a local church, several African-American citizens complained to Sheriff Cape
about racist and abusive treatment by Brannen. Cape generally made excuses for
Brannen’s racist conduct and language or took Brannen’s side in denying that any
incidents of discrimination occurred.
Brannen, who as “Captain” supervised all the patrol shifts, allowed his
evident racism to carry over into his management decisions. One deputy overheard
Brannen saying that each patrol shift needed to have “one black and one white”
1 Brannen denies making such comments, but at the summary judgment stage we must credit Blash’s version of the facts and draw all reasonable inferences in his favor. See Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007); Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005) (“[W]hen conflicts arise between the facts evidenced by the parties, we credit the nonmoving party’s version.” (emphasis omitted)). 3 USCA11 Case: 20-10337 Date Filed: 04/21/2021 Page: 4 of 26
deputy, and that there were “too many blacks” on one shift. The same deputy, who
is African American, testified that Brannen and Cape “made up” policies and rules
as they went along, and that they implemented them in a racially discriminatory
way. For example, the African American deputy was not allowed to drive his
patrol car home for the first year of his employment, ostensibly because of the
distance to his home. But after the Sheriff hired a Caucasian deputy who lived
even further away, the rule was changed so that both deputies could drive their
patrol cars home.
On one occasion before he was fired, Blash was disciplined more harshly
than a Caucasian deputy who committed the same offense. Specifically, the
Caucasian deputy used his marked patrol car for personal reasons by driving it to
the fairgrounds when he was off duty. He was given a verbal reprimand but was
allowed to retain his patrol car without restriction. When Blash similarly used his
patrol car for nonwork purposes while he was off duty, Brannen personally went to
retrieve the patrol car and Blash was suspended for two days and not allowed to
drive his patrol car home for six months.
Aside from the incident with the patrol car, it appears that Blash’s work
performance was satisfactory, at least until just before Blash was fired. The record
contains only one performance evaluation, in which Blash was given a “good”
rating in each category of evaluation.
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In the spring or early summer of 2014, an acquaintance named Scott Orta
told Blash that a postal driver had approached him about his pain medication.
Though Blash didn’t know it, the postal driver, Renee Howard, soon came under
investigation by the United States Postal Service and a local drug task force for
suspected theft of pharmaceuticals from the mail.
In November 2014, a United States Postal Service inspector met with
Sheriff’s Office Chief Investigator Robert McGriff and Jay Williams, a Sheriff’s
deputy who was a member of the drug task force, at the Sheriff’s Office to discuss
the investigation and plan a coordinated “sting” operation designed to catch
Howard. At some point during or after the briefing, McGriff showed Blash a
surveillance image of Orta and asked if he knew who he was. Blash identified
Orta and surmised that the Sheriff’s Office was taking part in an investigation.
McGriff did not tell Blash anything about the investigation, and there was no
further discussion after Blash identified Orta. Several weeks later, McGriff told
Blash that there had been a sting operation involving Howard and that it had been
successful. Blash was not advised of any ongoing investigation involving Howard.
To the contrary, McGriff indicated to Blash that the operation was over, since they
“got” Howard.
Sometime after he believed the investigation involving Howard had ended,
Blash encountered Orta and advised him to “stay away” from Howard. According
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to Blash and another deputy, it was common practice for law enforcement officers
to tell civilian acquaintances to “stay away” from or “be careful of” situations that
police were monitoring.
Unbeknownst to Blash, however, Howard had agreed to act as a confidential
informant in an ongoing Postal Service investigation after her arrest. Blash’s
conversation with Orta was reported through a chain of contacts that eventually
reached Sheriff Cape:2 Orta called Howard and told her that a deputy had warned
him to stay away from her. Howard called the Postal Service inspector and told
him that she was afraid that her status as an informant had leaked and she would
not be safe. The Postal Service inspector contacted Deputy Williams and told him
to deal with the Sheriff’s Office leak or the inspector would “handle it.” Williams
relayed the inspector’s complaint to Major Jason Freemont, and together Freemont
and Williams interviewed Orta and then Blash, who freely admitted telling Orta to
stay away from Howard. Major Freemont “briefed” Sheriff Cape, and after
2 Blash objects to Deputy Williams’s testimony regarding out-of-court statements made to Williams by the postal inspector or by Orta, by Williams to Major Freemont, and by Major Freemont to then-Sheriff Cape. It is true that generally, inadmissible hearsay cannot be considered on a motion for summary judgment. Jones v. UPS Ground Freight, 683 F.3d 1283, 1293 (11th Cir. 2012). But out-of-court statements that are introduced to show the effect of the statement on the listener, rather than to prove the truth of the matter stated, are not hearsay. Fed. R. Evid. 801(c); see United States v. Harris, 886 F.3d 1120, 1129–30 (11th Cir. 2018). Moreover, the district court found that each of the witnesses whose statements Williams reported could be called to testify at trial, and “a district court may consider a hearsay statement in passing on a motion for summary judgment if the statement could be reduced to admissible evidence at trial or reduced to admissible form.” Jones, 683 F.3d at 1293–94. 6 USCA11 Case: 20-10337 Date Filed: 04/21/2021 Page: 7 of 26
meeting with Major Freemont and Captain Brannen to discuss Blash’s “fate,” Cape
told Blash that he could resign or be fired. Blash refused to resign and asked for an
independent investigation of his actions. Cape fired him without having an outside
agency investigate.
The Sheriff’s Office referred the matter of Blash’s alleged interference in an
investigation to the local district attorney, and Blash was arrested and charged in
Pulaski County Superior Court with violation of his oath as a public officer and
obstructing the Postal Service inspector in the discharge of his official duties, by
providing confidential information in an active case to a potential suspect. The
charges against Blash were dismissed in September 2017 on motion of the county
district attorney.
Blash filed a complaint with the Equal Employment Opportunity
Commission, alleging that although he was told that he had been terminated for
interfering with an investigation, he believed that he had been discriminated
against because of his race. After receiving his “right to sue” letter from the
EEOC, Blash filed this employment discrimination suit against Pulaski County and
the Pulaski County Sheriff’s Office; Cape, individually; and Brannen, individually
and in his official capacity as the current Sheriff of Pulaski County. Blash alleged,
essentially, that Captain Brannen was a blatant racist who insisted that Blash be
fired, and that the stated reason for his termination was “bogus,” given that Blash
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was unaware of any ongoing investigation and telling civilians that they should
stay away from suspected criminals was a “common practice” among officers. He
contended, among other things, that Cape fired him because of his race, in
violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964.
On motion of the defendants, the district court dismissed all of Blash’s
claims for failure to state a claim except for the discriminatory termination claims
against Brannen in his official capacity as the current Sheriff and against former
Sheriff Cape in his individual capacity. Following discovery, the district court
granted summary judgment in favor of the defendants on those remaining claims.
Blash now appeals, challenging only (1) the entry of summary judgment for the
defendants on his Title VII discriminatory discharge claim against Brannen in his
official capacity as the Sheriff of Pulaski County, and his claim against Cape in his
individual capacity for discriminatory discharge in violation of 42 U.S.C. § 1981,
brought pursuant to 42 U.S.C. § 1983; and (2) the dismissal of his § 1983 race
discrimination claim against Brannen in his individual capacity (also premised on a
violation of § 1981) for failure to state a claim.
II.
“We review an entry of summary judgment de novo, construing all facts and
drawing all reasonable inferences in favor of the nonmoving party.” Jefferson v.
Sewon Am., Inc., 891 F.3d 911, 919 (11th Cir. 2018) (citation omitted); see Fils v.
8 USCA11 Case: 20-10337 Date Filed: 04/21/2021 Page: 9 of 26
City of Aventura, 647 F.3d 1272, 1287 (11th Cir. 2011). We also review a district
court’s grant of a motion to dismiss for failure to state a claim de novo, accepting
the allegations in the complaint as true and construing them in the light most
favorable to the plaintiff. Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261,
1265 (11th Cir. 2012).
III.
On appeal, Blash argues that the district court erred in granting the
defendants’ motions for summary judgment because he proffered sufficient
circumstantial evidence to permit a jury to infer that Brannen and Cape acted with
discriminatory intent in terminating his employment. We agree, and we therefore
reverse the district court’s entry of summary judgment on Blash’s Title VII claim
against Brannen, in his official capacity as the current Sheriff of Pulaski County,
and his § 1983 claim against former Sheriff Cape.
Summary judgment is appropriate when the record evidence shows that
there is no genuine dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the
initial burden to identify any portions of the pleadings, depositions, answers to
interrogatories, and affidavits demonstrating the absence of a genuine issue of
material fact. Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir.
9 USCA11 Case: 20-10337 Date Filed: 04/21/2021 Page: 10 of 26
2012). The burden then shifts to the nonmoving party to rebut that showing by
producing relevant and admissible evidence beyond the pleadings. Id.
At the summary judgment stage, the “evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Courts must not undertake the
jury’s function of weighing the evidence, making credibility determinations, or
deciding what inferences should be drawn from the facts. Id.; see Latimer v.
Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir. 2010). A genuine issue of
material fact exists when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Summary judgment
is appropriate only if a case is “so one-sided that one party must prevail as a matter
of law.” See id. at 251–52.
Title VII prohibits an employer from discriminating against an employee
based on his race, among other protected classes. 42 U.S.C. § 2000e-2(a)(1).
Section 1981 similarly prohibits intentional discrimination based on race in the
employment context. 42 U.S.C. § 1981(a); Ferrill v. Parker Grp., Inc., 168 F.3d
468, 472 (11th Cir. 1999). Section 1983, which provides a private cause of action
against a state actor who violates federal constitutional or statutory rights, provides
the exclusive remedy for a violation of § 1981 by a state actor. See 42 U.S.C.
§ 1983; Butts v. Cty. of Volusia, 222 F.3d 891, 893, 894 (11th Cir. 2000). To
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survive summary judgment on these intentional discrimination claims, a plaintiff
must present sufficient evidence to create a triable issue concerning the employer’s
discriminatory intent. 3 Smith v. Lockheed–Martin Corp., 644 F.3d 1321, 1328
(11th Cir. 2011).
Where the plaintiff relies on circumstantial evidence in an employment
discrimination claim, he may allow for an inference of discriminatory intent by
making out a “prima facie case” of discrimination, as that term is used in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Brooks v. Cty.
Comm’n of Jefferson Cty., 446 F.3d 1160, 1162 (11th Cir. 2006). Using the
McDonnell Douglas framework, the plaintiff’s prima facie case creates a
presumption of unlawful discrimination that may be rebutted if the defendant
produces evidence of a legitimate, nondiscriminatory reason for its employment
action. Id. If the defendant articulates a legitimate reason for termination, the
burden shifts back to the plaintiff to show that the employer’s proffered reason was
really pretext for discrimination. Id.
3 For the most part, we use the same legal framework to analyze employment discrimination claims under Title VII, § 1981, and § 1983. See Rice-Lamar v. City of Ft. Lauderdale, 232 F.3d 836, 843 n.11 (11th Cir. 2000). But while Blash can succeed on his Title VII claim by proving that his race was a “motivating factor” in the decision to terminate him, his § 1983 claim against Cape requires more—to prevail on a claim that the defendant violated § 1981, “a plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered the loss of a legally protected right.” Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020). 11 USCA11 Case: 20-10337 Date Filed: 04/21/2021 Page: 12 of 26
To establish a McDonnell Douglas prima facie case of employment
discrimination, a plaintiff must show that: (1) he was member of a protected class;
(2) he was subjected to an adverse employment action; (3) he was qualified for the
job; and (4) his employer treated similarly situated employees outside his class
more favorably. Lewis v. City of Union City, 918 F.3d 1213, 1220–21 (11th Cir.
2019) (en banc). The parties here do not dispute that Blash satisfied the first three
elements of the prima facie case. But they take opposing positions regarding the
fourth element—that is, whether Blash produced evidence showing that “similarly
situated” employees outside his protected class were treated more favorably.
Blash’s proposed “comparators” are two Caucasian deputies who were
accused of using excessive force during their arrest of an African-American man.
According to Blash, Sheriff Cape postponed any disciplinary action against the
Caucasian deputies until the Georgia Bureau of Investigation completed an
investigation into the incident, and the GBI investigation eventually cleared the
deputies of the charges against them. The district court found that Blash’s
proposed comparators were not “similarly situated” for purposes of establishing a
McDonnell Douglas prima facie case. We agree.
To satisfy the fourth element of the McDonnell Douglas prima facie case, a
plaintiff must show that he and his comparators were “similarly situated in all
material respects.” Id. at 1224. Although this is a case-specific inquiry, a similarly
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situated comparator ordinarily will have: (1) engaged in the same basic conduct or
misconduct; (2) been subject to the same employment policy, guideline, or rule;
(3) had the same supervisor; and (4) shared a similar employment or disciplinary
history. Id. at 1227–28. Here, Blash was accused of interfering with an ongoing
federal investigation by warning a personal acquaintance to stay away from the
subject of the investigation and thereby potentially compromising the subject’s
safety and usefulness as a confidential informant. This conduct is not remotely
similar to the Caucasian deputies’ alleged use of excessive physical force against a
civilian during the course of an arrest.
Blash argues that the Caucasian deputies were valid comparators because
they received “better treatment” even though they were accused of a more serious
offense. This argument overlooks the fact that the question for purposes of the
McDonnell Douglas analysis is whether the other employees’ alleged misconduct
was sufficiently similar to his so that the different disciplinary actions they
received would give rise to an inference of discrimination. His insistence that the
Caucasian deputies’ conduct was worse than his merely highlights the fact that
their conduct was different—and “[t]reating different cases differently is not
discriminatory, let alone intentionally so.” Id. at 1222–23 (emphasis in the
original). To make out a prima facie case under the McDonnell Douglas
framework, the plaintiff and his comparators “must be sufficiently similar, in an
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objective sense, that they ‘cannot reasonably be distinguished.’” Id. at 1228
(quoting Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1355 (2015)). Blash’s
alleged misconduct was simply too different from that of his proposed comparators
to offer a valid comparison, and the district court did not err in concluding that
Blash failed to make a McDonnell Douglas prima facie case of discrimination. See
id. at 1224.
But “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. Accordingly, the
plaintiff’s failure to produce a comparator does not necessarily doom the plaintiff’s
case.” Smith, 644 F.3d at 1328. A “plaintiff will always survive summary
judgment if he presents circumstantial evidence that creates a triable issue
concerning the employer’s discriminatory intent.” Id. “A triable issue of fact
exists if the record, viewed in the light most favorable to the plaintiff, presents
enough circumstantial evidence to raise a reasonable inference of intentional
discrimination.” Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1320
(11th Cir. 2012). Here, the record contains sufficient evidence to support an
inference of intentional discrimination by Blash’s employer (the Sheriff’s Office),
in violation of Title VII, and by then-Sheriff Cape individually, in violation of 42
U.S.C. § 1981.
14 USCA11 Case: 20-10337 Date Filed: 04/21/2021 Page: 15 of 26
A.
We begin with Blash’s Title VII claim against his former employer, the
Sheriff of Pulaski County—currently, Brannen. A plaintiff may succeed on a Title
VII discriminatory discharge claim by proving either that bias against his race or
other protected characteristic was the “but-for” cause of his termination—that is,
that it was “the true reason for the adverse action”—or that such illegal bias was at
least “a motivating factor for” his termination, “even though other factors also
motivated the action.” 42 U.S.C. § 2000e-2(a)(1), (m); Quigg v. Thomas Cty. Sch.
Dist., 814 F.3d 1227,1235 (11th Cir. 2016).
Blash relies primarily on statements and actions by then-Captain Brannen to
support an inference of racial bias, even as he acknowledges that only the Sheriff—
Cape, at the time—has the authority to hire and fire Sheriff’s deputies. In some
cases, the discriminatory intent of a supervisor who lacks the authority to terminate
the plaintiff may be imputed to the employer—if, for example, the decision-
making party followed a biased recommendation by the supervisor without
independently investigating the complaint, essentially acting “as a mere conduit, or
‘cat’s paw’ to give effect to the recommender’s discriminatory animus.” Stimpson
v. City of Tuscaloosa, 186 F.3d 1328, 1331–32 (11th Cir. 1999).
To establish liability under this theory, the plaintiff generally must prove that
the supervisor’s discriminatory animus “was an actual cause of the other party’s
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decision to terminate the employee.” Id. at 1331. Where the statute giving rise to
the cause of action only requires proof that the employee’s protected characteristic
was a “motivating factor” in the adverse employment decision, liability may be
established by showing that (1) the adverse decision is “the intended consequence”
of the supervisor’s biased report or recommendation, and (2) the supervisor’s
biased action was “a causal factor” of the decisionmaker’s adverse decision. Staub
v. Proctor Hosp., 562 U.S. 411, 419, 420 (2011) (discussing “cat’s paw” liability in
the context of USSERA, a “very similar” statute to Title VII).
The “requirement that the biased supervisor’s action be a causal factor of the
ultimate employment action incorporates the traditional tort-law concept of
proximate cause.” Id. at 420. “Proximate cause requires only ‘some direct relation
between the injury asserted and the injurious conduct alleged,’ and excludes only
those ‘link[s] that [are] too remote, purely contingent, or indirect.’” Id. at 419
(alteration in the original) (quoting Hemi Group, LLC v. City of New York, 559 U.S.
1, 9 (2010)). The supervisor’s discriminatory act may be a proximate cause of the
employment action and expose the employer to liability even if the decisionmaker
is not biased and exercises his own judgment in reaching his decision. In that case,
the “decisionmaker’s exercise of judgment is also a proximate cause of the
employment decision, but it is common for injuries to have multiple proximate
causes.” Id. at 420. An independent investigation by the decisionmaker does not
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automatically shield the employer from liability, either. The “supervisor’s biased
report may remain a causal factor if the independent investigation takes it into
account without determining that the adverse action was, apart from the
supervisor’s recommendation, entirely justified.” Id. at 421.
Here, Blash presented sufficient evidence from which the jury could infer
that then-Captain Brannen influenced or controlled the decision to terminate
Blash’s employment, and that racial bias was at least a motivating factor in the
decision. Several witnesses testified that Brannen, not Cape, ran the Sheriff’s
Office, even when Cape was nominally the Sheriff. Witnesses testified that Cape
was afraid of Brannen and consistently deferred to him in managing the Sheriff’s
Office. Brannen changed Sheriff’s Office procedures at will, and Cape went along
with any policy or discipline that Brannen implemented. Brannen also created the
position of Captain (supervisor of all the shift supervisors) for himself, and Cape
went along with that too.
Circumstantial evidence also supported a jury inference that Brannen was
involved in the decision to terminate Blash’s employment, notwithstanding
Brannen’s own testimony to the contrary. Brannen was Blash’s direct supervisor,
and Blash testified that standard protocol in the Sheriff’s Office was that any
recommendation for discharge would be initiated by a deputy’s direct supervisor.
In their interrogatory responses, the defendants admitted that Brannen met with
17 USCA11 Case: 20-10337 Date Filed: 04/21/2021 Page: 18 of 26
Sheriff Cape and Major Freemont “to discuss Plaintiff’s fate” just before he was
terminated, and Blash testified that Brannen looked “smug and pleased” when
Cape told Blash that he was fired.
In addition, a jury could make the reasonable inference that Blash’s warning
to Orta to stay away from the suspect postal worker, which came to Cape’s
attention just before he terminated Blash’s employment, would not have resulted in
Blash’s termination if Blash had been white. Blash and former deputy Eddie
Nieves testified that it was common practice for law enforcement officers,
including (according to Nieves) officers at the “highest levels,” to give similar
warnings. Chief Investigator McGriff—who was involved in the investigation at
issue—and former deputy Anthony Taylor both testified that Blash had done
nothing wrong, and Nieves testified that in 15 years of law enforcement in multiple
police departments, he had never seen an officer disciplined or terminated for this
routine conduct. The fact that the county district attorney voluntarily dismissed the
criminal charges arising from Blash’s conduct also gives some support to an
inference that Blash would have been cleared of any wrongdoing if he had been
given the independent investigation that he requested.
Blash also presented evidence supporting the inference that Sheriff Cape
would have requested an independent investigation if Blash had been white.
Taylor testified that “[w]henever a Sheriff’s Deputy had an alleged infraction Billy
18 USCA11 Case: 20-10337 Date Filed: 04/21/2021 Page: 19 of 26
Cape would call the GBI to investigate.” Blash testified similarly that when
“Caucasian deputies had been accused of infractions that could have resulted in
discharge, any termination decision regarding them had been held in abeyance
pending an investigation by the GBI.” But Cape did not request an investigation
into the allegations against Blash by the GBI or any other outside agency, despite
the fact that Blash specifically asked him to do so. And when Taylor questioned
Cape about Blash’s termination and urged him to “give Johnny Blash a GBI
investigation like was routinely done for Caucasian officers,” Cape had no
meaningful response.
Finally, ample evidence showed that Brannen harbored strong racial animus
against African Americans, and that he displayed that animus in performing his
duties at the Sheriff’s Office. Blash also presented significant evidence connecting
Brannen’s racism to his personnel management decisions, including one prior
disciplinary decision related to Blash specifically. Assuming that the jury makes
the inference that Brannen recommended that Blash be terminated, this evidence—
coupled with the circumstantial evidence that Blash’s warning to Orta ordinarily
would not have resulted in his termination—would support the additional inference
that Brannen’s recommendation was racially motivated.
Putting these pieces together, if the jury makes every reasonable inference
and credibility determination and decides every disputed factual question in
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Blash’s favor—and again, at this stage of the proceedings we must assume that the
jury will do so—it could conclude that (1) Blash’s warning to Orta to stay away
from the suspect postal worker was not a fireable offense, but a common practice
among law enforcement officers; (2) given that such warnings were a common
practice even among officers at the “highest levels” of the Sheriff’s Office, Cape
and Brannen were aware of and ordinarily tolerated the practice; (3) Brannen
nonetheless recommended that Blash be fired; (4) Brannen’s recommendation was
motivated by racial animus; and (5) Cape deferred to Brannen’s discriminatory
recommendation in his decision to terminate Blash’s employment, despite knowing
that Brannen was racially biased, and under circumstances in which he would not
have fired a Caucasian officer without first initiating an outside investigation. 4 In
other words, the jury could find that that the Sheriff’s Office was liable under Title
VII because Brannen’s biased recommendation was intended to cause, and did
cause Blash’s termination, and because Blash’s race was at least “a motivating
factor” for his termination. See Staub, 562 U.S. at 419–20; Quigg, 814 F.3d at
1235.
4 The defendants argue that even if Brannen did recommend that Blash be fired (which they deny), Cape’s offer to allow Blash to resign shows that Brannen’s recommendation did not influence Cape’s decision. But this is a distinction that makes no difference—either way, Blash had no option that would have allowed him to maintain his employment with the Sheriff’s Office. 20 USCA11 Case: 20-10337 Date Filed: 04/21/2021 Page: 21 of 26
B.
The evidence Blash presented was also sufficient to permit a jury to find in
his favor on his § 1983 claim against Cape. To succeed on a § 1983 claim, a
plaintiff must prove that the defendant, acting under color of state law, violated a
federal constitutional or statutory right. 5 See Williams v. Bd. of Regents of Univ.
Sys. of Georgia, 477 F.3d 1282, 1299 (11th Cir. 2007). Where the defendant’s
allegedly unlawful action was taken within the scope of his discretionary authority
as a government official and the defendant asserts a defense of qualified immunity,
the plaintiff must also show that the defendant’s conduct violated clearly
established law. Id. at 1300.
Here, Blash alleged that Cape violated § 1981, which guarantees that every
person shall have “the same right” as white citizens to, among other things, “make
and enforce contracts.” 42 U.S.C. § 1981(a). To succeed on his § 1981 claim
against Cape in this context, Blash must prove that Cape purposefully
discriminated against him, and that Cape would not have terminated his
employment if he had been white. See Comcast Corp. v. Nat’l Ass’n of Afr. Am.-
Owned Media, 140 S. Ct. 1009, 1015 (2020) (explaining that “if the defendant
would have responded differently but for the plaintiff’s race, it follows that the
5 The defendants do not dispute that Cape was acting under color of state law in his role as Sheriff of Pulaski County, or that his action in firing Blash was within the scope of his discretionary authority as Sheriff. 21 USCA11 Case: 20-10337 Date Filed: 04/21/2021 Page: 22 of 26
plaintiff has not received the same right as a white person”); Ferrill, 168 F.3d at
472. There is no doubt that it was clearly established long before Blash’s
termination in December 2014 that intentional discrimination in employment
decisions based on the employee’s race violates federal law. See, e.g., Ferrill, 168
F.3d at 472 (citing Johnson v. Railway Express Agency, 421 U.S. 454, 459–460
(1975)).
Again, the evidence recounted above would support jury inferences that
(1) Cape was aware that law enforcement officers, including officers at the
“highest levels” of the Sheriff’s Office, commonly warned civilian acquaintances
away from suspect situations, and such conduct ordinarily did not result in
disciplinary action; (2) if Blash had been white, Cape would have requested an
investigation into Blash’s actions by an outside agency before subjecting him to
discipline or termination; and (3) if Blash had been given the benefit of an
independent investigation, as was “routinely done for Caucasian officers,” he
would have been cleared of any wrongdoing and would not have been terminated.
Thus, a reasonable jury could conclude that Cape intentionally discriminated
against Blash because of his race in violation of § 1981(a) by firing him without
initiating an independent investigation, supporting a verdict in Blash’s favor on his
discriminatory discharge claim against Cape.
22 USCA11 Case: 20-10337 Date Filed: 04/21/2021 Page: 23 of 26
IV.
Turning to the district court’s dismissal of Blash’s § 1983 claim against
Brannen individually, we note that the factual basis for Blash’s claims was
somewhat different at the pleadings stage. We have concluded that Blash was able
to muster sufficient evidence after discovery to create a triable issue of intentional
discrimination and fend off the defendants’ motions for summary judgment. But in
ruling on Brannen’s Rule 12(b)(6) motion to dismiss, the district court was limited
to the facts alleged on the face of Blash’s complaint. See Brooks v. Blue Cross &
Blue Shield of Fla., Inc., 116 F.3d 1364, 1368 (11th Cir. 1997). And in his
complaint, Blash failed to allege facts showing the required causal connection
between Brannen’s allegedly racist conduct and Cape’s decision to fire him.
To comply with Federal Rule of Civil Procedure 8(a)(2), a complaint must
contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. “Thus, at a
minimum, notice pleading requires that a complaint contain inferential allegations
23 USCA11 Case: 20-10337 Date Filed: 04/21/2021 Page: 24 of 26
from which we can identify each of the material elements necessary to sustain a
recovery under some viable legal theory.” Roe v. Aware Woman Ctr. for Choice,
Inc., 253 F.3d 678, 684 (11th Cir. 2001). A pleading that offers “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action will not
do.” Iqbal, 556 U.S. at 678. And “conclusory allegations, unwarranted deductions
of facts or legal conclusions masquerading as facts will not prevent dismissal.”
Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).
Blash sought to state a § 1983 claim against Brannen individually for a
violation of 42 U.S.C. § 1981, which, as we have said, prohibits discrimination on
the basis of race in the employment context. Ferrill, 168 F.3d at 472. To succeed
on a § 1983 claim, a plaintiff must prove that the individual defendant’s alleged
statutory or constitutional violation caused the alleged harm. Dixon v. Burke Cty.,
303 F.3d 1271, 1275 (11th Cir. 2002); see Iqbal, 556 U.S. at 676. And the “causal
relation does not exist when the continuum between Defendant’s action and the
ultimate harm is occupied by the conduct of deliberative and autonomous decision-
makers.” Dixon, 303 F.3d at 1275; see also Comcast, 140 S. Ct. at 1014 (§ 1981
plaintiff must plead and prove that race was a but-for cause of its injury).
Blash alleged in his complaint that (1) Brannen was employed by the
Sheriff’s Office as a Captain and Blash’s direct supervisor, (2) Brannen made
statements showing that he harbored racial animus against African Americans
24 USCA11 Case: 20-10337 Date Filed: 04/21/2021 Page: 25 of 26
generally and against Blash specifically, (3) Brannen insisted to Sheriff Cape that
Blash be fired, and (4) the Sheriff’s Office fired Blash without an internal
investigation based on charges that would not have been sustained had they been
investigated. Notably, though Blash later produced evidence supporting an
inference that Brannen wielded extraordinary influence over Cape in his
management of the Sheriff’s Office, Blash failed to allege facts that would support
such an inference in his complaint. He did not allege, for example, that Brannen
ran the Sheriff’s Office, even when Cape was nominally the Sheriff; or that
Brannen changed Sheriff’s Office policies and made up disciplinary rules at will,
and that Cape routinely deferred to Brannen in such matters. And although he
alleged that Brannen “insisted” to Sheriff Cape that Blash be fired, he failed to
allege that Brannen’s insistence had any effect on Sheriff Cape’s decision, let alone
that it caused the Sheriff to fire him. Indeed, Blash also alleged that Sheriff Cape
and the County Commissioner informed him that Sheriff Cape had “exclusive
authority” to terminate employees of the Sheriff’s Office.
These allegations failed to establish the required causal connection between
any racially motivated action by Captain Brannen and the Sheriff’s termination of
Blash’s employment. Because the factual allegations in Blash’s complaint failed
to raise his right to relief on his § 1983 claim against Brannen “above the
25 USCA11 Case: 20-10337 Date Filed: 04/21/2021 Page: 26 of 26
speculative level,” the district court did not err in dismissing that claim. Twombly,
550 U.S. at 555.
V.
We conclude that the district court did not err in dismissing Blash’s § 1983
claim against Brannen for failure to state a claim because Blash failed to allege
facts in his complaint showing the required causal connection between Brannen’s
alleged racism and Cape’s decision to terminate Blash’s employment. At the
summary judgment stage, however, Blash presented sufficient circumstantial
evidence from which a jury could conclude that his employer’s racial bias was “the
true reason for the adverse action” against him—or, for purposes of his Title VII
claim, that his race was at least “a motivating factor for” his termination—and that
Cape failed to accord Blash the same employment rights that he would have
granted to a white deputy, in violation of § 1981(a). Quigg, 814 F.3d at 1235; see
Comcast Corp., 140 S. Ct. at 1015. We therefore affirm the dismissal of Blash’s
§ 1983 claim against Brannen, individually, but reverse the summary judgment for
the defendants on Blash’s Title VII claim against Sheriff Brannen in his official
capacity, and his § 1983 claim against Cape in his individual capacity.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.