Brennan Appendix

USCA11 Case: 20-10337 Date Filed: 09/02/2020 Page: 1 of 107
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
______________________________________________________________
Appeal No. 20-10337-D

_____________________________________________________________
JOHNNY BLASH,
Appellant,
v.
WILLIAM B. CAPE and DANNY BRANNEN,
Appellees.
__________________________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF GEORGIA
CIVIL ACTION NO.: 5:17-cv-00380-TES
__________________________________________________________________
APPENDIX OF APPELLEES
__________________________________________________________________
Derrick L. Bingham, Esq., Georgia Bar No. 141217
Owen Gleaton Egan Jones & Sweeney, LLP

303 Peachtree Street, N.E.
Suite 2850
Atlanta, Georgia 30308
(404) 688-2600
Attorneys for Appellees

Index to Appendix for Appellees

Tab Document Docket Page
No
1. Indictment 11-1 3
2. Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion 70 9
for Summary Judgment
3. Deposition of Danny Brannen 72-1 38
2
TAB 1
INDICTMENT
3
Case 5:17-cv-00380-TES Document 11-1 Filed 01/18/18 Page 1 of 5
EXHIBIT A PAGE 1 OF 5
4
5
6
7
8
TAB 2
Plaintiff’s Memorandum of Law in Opposition to

Defendants’ Motion for Summary Judgment
9
Case 5:17-cv-00380-TES Document 70 Filed 06/13/19 Page 1 of 28
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
------------------------------------------------------x
JOHNNY BLASH, :
Plaintiff, :
vs. : CIVIL ACTION

FILE NO. 5:17-00380-TES
BILLY CAPE; and DANNY BRANNEN,
in his Official Capacity as :
Sheriff, Pulaski County, Georgia,
:
Defendants.
------------------------------------------------------x
PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Brannen Wielded Disproportionate Power in the Sheriff’s Office
Brannen effectively ran the Sheriff’s Office because Cape was afraid of and
deferred to him. (Diaz Dec. ¶¶5, 6; Blash Dec. ¶9). Brannen put himself in the
position of “Captain”, a job title which did not exist and he created, which Cape
went along with. (Taylor Dec. ¶16). Even though Cape directed Brannen to take
an anger management class, Cape did not want “to get Danny bothered” because
Cape knew that Danny would lose his temper quickly ((Brannen Dep. 15:15-16:15;
Diaz Dec. ¶¶6,7). Cape made excuses for Brannen’s racist behavior. (Taylor Dec.
¶30).
10
Danny Brannen was Involved in Johnny Blash’s Termination
Brannen admits discussing terminating Blash before Cape made the decision
to fire Mr. Blash, and was present when Cape fired Blash. (Brannen Dep. 29:10-
30:130:20-32:1). The recommendation for Blash’s discharge would normally be
initiated by Brannen as Captain of the Patrol Division. (Blash Dec. ¶10).
Defendants admit that Brannen met with Cape “to discuss Plaintiff’s fate.”
Undisputed Fact No. 26.
At all Relevant Times Danny Brannen Harbored Racial Animus
Brannen referred to African Americans as “Niggers.” On one occasion in the
summer or fall of 2017, Brannen responded to a call to the Sheriff’s Office
regarding a dispute over a mechanic’s lien that had been imposed by one Benjamin
Diaz. The individual who owned the vehicle was African American. Mr. Brannen
said to Mr. Diaz, “Ben, he’s a typical Nigger. They all want something for
nothing.” (Diaz Dec. ¶11). Brannen said to Willie Tenon “ . . . a black person is
lying . . . [i]f they are black and moving their lips.” (Tenon Dec. ¶14).
Lucious Bray had several meetings with Sheriff Cape “to discuss Danny
Brannen’s racism.” (Bray Dec. ¶5, 8, 9). Bray had received several complaints
from African American citizens of Hawkinsville about racist treatment by
Brannen. (Id., ¶6, 13). The complaints involved Brannen singling out African
American citizens and threatening them, stopping them on the street and
11
demanding they answer questions, and on at least one occasion physically
assaulting and using excessive force against an African American citizen. (Id., ¶7).
There was a “town hall” in Hawkinsville to address numerous complaints by
African Americans of Brannen’s racial harassment. (Id., ¶12). Cape and Brannen
were at the “town hall.” (Id.). Brannen’s demeanor was “hostile” and he raised his
voice. (Id.). Brannen admits that he attended this meeting but claims that the point
of the meeting “was just to get familiar with the NAACP.” (Brannen Dep. 21:23-
22:9). Brannen’s “racist treatment of African Americans was prevalent and not
isolated . . . and his racist tendencies . . . widely known.” (Bray Dec. ¶13). Even
after the “town hall”, Brannen continued to use racial epithets and to harass
African American citizens on the basis of their race. (Bray Dec., ¶¶10, 11, 13).
Brannen was suspended for four days for hostile behavior towards Anthony
Taylor, a former Pulaski County Deputy, who is African American. (Brannen Dep.
15:15-1615, 20:3-21:13; Blash Dec., ¶8).
Brannen Behaved as if he could Disregard the Law
In addition to the aforesaid racial harassment of African Americans in
Pulaski County, Danny Brannen’s acted as though he believed he could violate the
law with impunity. He unlawfully searched Willie Tenon’s pool hall without a
warrant, even though it had all the requisite licenses. (Tenon Dec. ¶¶5, 6, 8-14).
Mr. Tenon and his wife, who run the pool hall business together, are African
12
American. (Id. ¶7). Brannen continued to own one of Hawkinsville’s two 911
dispatched wrecker companies even after he became Sheriff and even though as
Sheriff this was improper. (Diaz Dec. ¶10).
Disparate Treatment of Plaintiff on the Basis of Race Before His Discharge
Danny Brannen and Billy Cape, “made up” rules on an ad hoc basis,
including for job infractions, which they implemented in a racially discriminatory
way. (Taylor Dec. ¶16). When Jay Williams, a Caucasian Pulaski County Sheriff’s
Deputy, improperly took a police vehicle to the Perry fairgrounds while not on
police business, he was not disciplined, but only verbally reprimanded. (Brannen
Dep. 36:9-24; Taylor Dec. ¶18-20). Yet, when Johnny Blash, who is African
American, similarly used a police vehicle while not on police business, he was
disciplined, including being suspended for two days, and prohibited from driving
his police vehicle home, for six months. (Brannen Dep., 37:4-12; Taylor Dec. ¶21).
Disparate Treatment of African Americans by Brannen and Cape
African American and Caucasian Sheriff’s Deputies were treated differently
based on race under Sheriff Cape in other ways as well. (Taylor Dec. ¶ 12). When
Anthony Taylor was a Sheriff’s Deputy working under Sheriff Cape he was not
allowed to take his patrol car home allegedly because of the distance of his home.
(Taylor Dec. ¶ 13). However, when a Caucasian Deputy Sheriff who lived as far or
further than Deputy Taylor became employed, he was allowed to take his patrol car
13
home, and only then was Deputy Taylor allowed to do the same, after a year of
being denied this. (Taylor Dec ¶¶ 13-15). Brannen and Cape required Willie Tenon
to close his business at midnight at the same time that they permitted a Caucasian
owned competitor business that similarly did not have an on-premises liquor
license but allowed customers to bring their own liquor, to close at 2:00 AM.
(Tenon Dec. ¶19). Tenon is African American, as is his wife, who ran the business
with him. (Id., ¶7). Billy Cape was Caucasian. (Tenon Dec. ¶17; Blash Dec., ¶11).
Blash was Unaware of any Postal Service Investigation
Robert McGriff was Chief Investigator of the Pulaski County Sheriff’s
Office at the time of the operative events in this case. (McGriff Dec. ¶6).
Investigator McGriff was one of three people who were involved in the
investigation and sting operation involving a female postal worker who was
suspected of stealing medication. (McGriff Dec. ¶¶10, 11). The only individuals
who participated in and knew about this investigation were McGriff, Jay Williams,
and the Postal Service Investigator, Jarrett Arrington. (Id). As part of the
investigation a video camera was installed in the female postal employee suspect’s
vehicle. (McGriff Dec. ¶12). At the end of the first week of this surveillance, the
video revealed that the female postal employee suspect, one Renee Howard, had
stopped at a particular corner in Hawkinsville and had received what appeared to
be a pill bottle from a male civilian, who was unknown. (McGriff Dec. ¶13).
14
On the day of the planned sting operation, in or about late October or early
November 2014, Mr. Blash was sitting in the station doing paperwork. (McGriff
Dec. ¶14; Blash Dec. ¶5). McGriff showed Blash a picture of the unknown male
civilian and asked Blash if he knew who that individual was. (McGriff Dec. ¶14).
Blash responded that he did and identified the man as Scott Orta. (Id). McGriff
never told Mr. Blash what this was about, or why he was asking, and there was no
further discussion beyond Blash identifying Orta. (Id). Two to three hours later,
Renee Howard was successfully detained. (McGriff Dec. ¶15).
Blash had no knowledge about the postal investigation, and was never told
about it, including the fact that an investigation was under way and a sting
operation was planned, or the identity of any individual who was a person of
interest or intended target of the investigation and sting. (McGriff Dec. ¶16). Blash
was never told the identity of the female postal worker who was under suspicion.
(McGriff Dec. ¶16).
Orta was never a person of interest or the intended target of the
investigation or sting operation. (McGriff Dec. ¶17).The investigation was never
focused on Scott Orta. (Id). Howard’s arrest ended the investigation. (Id.,¶18).
Blash’s Warning to Scott Orta did not Compromise any Investigation
Blash has known Scott Orta since in or about 2011. Orta was a local
handyman who from time to time worked on Blash’s house. In or about late Spring
15
or early Summer 2014, Blash was talking to Orta while on routine patrol when
Orta raised the issue to Blash that a postal driver named Renee had been
approaching him about his pain medication. (Blash Dec. ¶4).
In or about the end of November 2014, after Howard had been arrested and
the investigation concluded (McGriff Dec. ¶¶ 16-18. Blash Dec. ¶¶6,7), while on
normal patrol duties, Blash happened to see Orta and motioned for Orta to come
speak to him. Blash then cautioned him to “stay away from Renee.” It was
common practice for police officers, including Caucasian police officers to say to
civilians with whom they were familiar, words to the effect that “you should stay
away” or “be careful”. (Blash Dec. ¶6, McGriff Dec. ¶21). Blash did not
“compromise” an ongoing investigation (McGriff Dec. ¶18), and did not speak to
any “suspect” (Id., ¶17). McGriff had told Blash weeks before that the sting
operation was over since they “got” Renee. (Blash Dec. ¶7). At the time Blash
spoke to Orta at the end of November, he had no reason to believe that his caution
to Mr. Orta would have any impact on any investigation.(Id.). According to
McGriff “Blash did not do anything wrong.” (McGriff Dec., ¶20).
Blash was Treated Differently Caucasian Deputies with Respect to his Termination
When then-Sheriff Cape told Blash that he was being fired, Blash asked that
any termination decision be held in abeyance pending an investigation by the
Georgia Bureau of Investigation (“GBI”). When Caucasian Deputies had been
16
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. (Blash Dec. ¶12; Brannen Dep. 34:14-36:8; Taylor Dec. ¶¶18-20). When
Caucasian Deputies Chris White and Jordan Peavy had been accused of using
excessive force when arresting an African American, no termination decision was
made before a GBI investigation. (Blash Dec. ¶12; Brannen Dep. 34:14-36:8).
Blash was fired without the benefit of any investigation by the GBI even though he
specifically requested it. (Blash Dec. ¶12; Taylor Dec. ¶¶18-20).
POINT I
DEFENDANTS’ ARGUMENT BASED ON PLAINTIFF’S
FAILURE TO NAME THE PULASKI COUNTY SHERIFF
IN THE EEOC CHARGE SHOULD BE REJECTED
Title VII’s language giving a plaintiff a right to file suit against “the person
named in the [EEOC] charge” is not a jurisdictional naming requirement
conferring or denying a district court of subject matter jurisdiction. Jackson v.
Seaboard Coast Line R. Co., 678 F.2d 992, 1010 (11th Cir. 1982). Rather, in the
Eleventh Circuit, the naming requirement is interpreted liberally to “permit
plaintiffs to bring Title VII claims against not only those parties specifically named
as respondents in the EEOC charges, but also parties ‘sufficiently implicated in the
discrimination alleged in appellants' original charges to have reasonably triggered
an EEOC investigation of the (party).’” Id., quoting, Terrell v. United States Pipe
& Foundry Co., 644 F.2d 1112 (5th Cir. 1981). The Eleventh Circuit instructs
8
17
District courts to “look beyond the express terms of the EEOC charges and
examin[e] the specific discriminatory conduct alleged to see if it implicated the
defendants”. Jackson v. Seabord, 678 F.2d at 1010. The purpose of liberally
construing the naming requirement is to avoid creating a burdensome technical
requirement especially where employees file initial EEOC charges pro se, as Mr.
Blash did here. Lewis v. Asplundh Tree Expert Co., 2008 WL 650433, at *3 (N.D.
Fla. Mar. 7, 2008), aff'd in part, rev'd in part and remanded, 305 F. App'x 623
(11th Cir. 2008). The “naming precondition . . . must be liberally construed.”
Lewis v. Asplundh Tree Expert Co., 402 F. App’x 454, 456–57 (11th Cir. 2010).
In analyzing whether Title VII’s purposes are met, a Court looks to several fluid
factors including 1) the similarity of interest between the named party and the
unnamed party; 2) whether the plaintiff could have ascertained the identity of the
unnamed party at the time the EEOC charge was filed; 3) whether the unnamed
parties received adequate notice of the charges; 4) whether the unnamed parties
had an adequate opportunity to participate in the reconciliation [sic] process; and
5) whether the unnamed party actually was prejudiced by its exclusion from the
EEOC proceedings. Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1359 (11th
Cir. 1994). This is not meant to be a “rigid test”, and “[o]ther factors may be
relevant depending on the specific facts of the case.” Id; Lewis v. Asplundh, 402 F.
App’x at 456–57. Another factor is “whether an investigation of the unnamed party
18
‘could have reasonably grown out of [the EEOC] charge.” Hamm v. Members of
Bd. of Regents, 708 F.2d 647, 650 (11th Cir.1983); Terrell v. U.S. Pipe & Foundry
Co., 644 F.2d 1112, 1123 (5th Cir.1981), vacated on other grounds sub nom. Int'l
Ass'n of Machinists & Aerospace Workers, AFL–CIO v. Terrell, 456 U.S. 955
(1982). “That factor weighs in favor of inclusion of an unnamed party if the party's
identity or participation in the alleged discrimination is or is likely to be uncovered
during the EEOC's reasonable investigation growing out of the charge.” Lewis v.
Asplundh, 402 F. at 456–57; citing Terrell, 644 F.2d at 1123. The Virgo and
Hamm factors all weigh in favor of Mr. Blash.
The similarity of interest factor (Virgo factor 1) is so strong here that the
Pulaski County Sheriff and Pulaski were effectively joint employers of Plaintiff:
• The Sheriff’s Office listed “Pulaksi County Commission” as
Plaintiff’s employer in the Separation Notice it sent to the Georgia
Department of Labor (Brannen Dep., Exhs. 4, 5) and the UI file. (Exh.
11).
• The Sheriff’s Office similarly identified the “Pulaski County
Commission” as the employer for other Sheriff’s Office employees
which it terminated. (Exh. 1).
• Documents forwarded from the Georgia Department of Labor
regarding Mr. Blash’s separation from the “Pulaski County
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19
Commission”, indicating that these documents had been received by
the Department of Labor from the “Sheriff’s office.” (Exh. 2).
• Mr. Blash was required to sign for receipt of the “Pulaski County
Commission Personnel Policy Manual” which sets forth the
“employment relationship between Pulaski County and its employees”
(Exh. 3).
• The “Acknowledgement” that Mr. Blash had to sign stated “my
employment” by Pulaski County is at will. (Exh. 3).
• The Pulaski County Commissioner had to approve pay increases for
Sheriff’s Deputies that were “recommended” by the Sheriff. (Exhs. 4,
5).
• Personnel actions for Sheriff’s Deputies, including departmental
transfers, had to be approved by the Pulaski County Commissioner.
(Exhs. 4,5).
• As was the case here, Sheriff’s Deputies could appeal a personnel
action, including termination, to the Pulaski County Commission.
(Exh. 4).
• The EEOC file contains a letter from Pulaski County’s attorney
identifying Mr. Blash as “Deputy Sheriff for Pulaski County.”
(Exh. 6).
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20
Blasingim v. Hill, 2009 WL 10554918 at *1-14 (N.D.Ga. Jan. 16, 2009)
(interrelationship of control between county and sheriff’s office is factual rather
than legal matter, and a set of facts could support single or joint employer liability
of county and sheriff’s office in Title VII action by sheriff’s former employee).
Virgo Factor 2 also supports Blash. While Blash was obviously aware that
he worked in the Sheriff’s Office, Defendant has not produced a single document
giving Blash notice that as a technical matter his employer was the Pulaski County
Sheriff. Instead, the Separation Notice, the acknowledgement for receipt of the
“Pulaski County Commission Personnel Policy Manual”, wherein Blash
acknowledged employment “by Pulaski County” all indicate that Blash’s employer
was Pulaski County. In fact, the Sheriff’s Office twice listed “Pulaski County
Commission” as Plaintiff’s employer in the Separation Notice it sent to the
Georgia Department of Labor. This is precisely the situation where a pro se EEOC
Charging Party like Blash should not be penalized for failing to jump through legal
nuances, especially where the Sheriff’s Office acted in a manner that obscures its
identity. Pollard v. Mark, 2008 WL 11334021, at *4 (N.D. Ga. Apr. 3, 2008),
report and recommendation adopted, 2008 WL 11336874 (N.D. Ga. Apr. 30,
2008) Burns v. Windsor Birmingham, LLC, 2007 WL 9711390 at *3-4 (N.D. Ala
Sept. 30, 2007) (rejecting defendants’ failure to name argument where their actions
“arguably misled the plaintiffs”).
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21
The Sheriff’s Office clearly received notice of the EEOC Charge (Virgo
Factor 3), since Sara Myers, who signed the Separation Notice identifying Blash’s
employer as the “Pulaski County Commission”, wrote to the EEOC requesting an
extension of time to respond to EEOC’s request for information because “our
county attorney. . .is coordinating with our Sheriff to get the necessary information
submitted.” (Exh. 7) (Emphasis added). This same evidence weighs in Blash’s
favor regarding the fourth and fifth Virgo factors since the Sheriff’s Office could
have participated in any conciliation process had there been one, and obviously
suffered no prejudice since it participated in the EEOC process by coordinating a
response with the county to Blash’s EEOC Charge.
Other documents also make clear that the scope of the EEOC investigation
included the Sheriff’s Office: 1) emails to and from Daniel Nance, the EEOC’s
Enforcement Supervisor which identify Blash’s action as (Wrongful termination)
Pulaski County Sheriff Office.” (Exh. 8); 2) Mr. Blash’s email to the EEOC
investigator, Irene Carter, asking for an update on “my charge against Pulaski
County Sheriff Office.” (Exh. 9); and 3) the EEOC’s predetermination letter
referencing Blash’s termination from the Pulaski County Sheriff’s office. (Exh.
10).
All of the foregoing, which must be construed in Mr. Blash’s favor, weigh in
favor of a fact finder deciding that the Sheriff’s office had notice, participated in
13
22
the EEOC process, and suffered no prejudice by not being officially named as a
respondent on the charge. It also supports the reasonable inference that the EEOC’s
investigation of the Sheriff’s Office not only could have “reasonably grown out of
the [EEOC] charge”, but in fact, directly involved the Sheriff’s Office. Hamm v.
Members of Bd. of Regents, 708 F.2d 647, 650 (11th Cir.1983).
Defendants set forth the Virgo factors but fail to apply them, pointing out
only that the Pulaski County Sheriff and Pulaski County are different entities.
However, their separate entity status only means that the Virgo factors need to be
applied which Defendants have failed to do. Defendants’ argument regarding
“federalism and comity” concerns is similarly unavailing, since the separate status
of the County and the Sheriff’s office is merely a starting point for application of
Virgo and Hamm, which is firmly established in 11th Circuit federal law.
POINT II
DEFENDANTS HAVE FAILED TO ARTICULATE
A LEGITIMATE, NON-DISCRIMINATORY
REASON FOR PLAINTIFF’S TERMINATION
The linchpin of Defendants’ motion for summary judgment is that Blash
allegedly compromised an ongoing investigation. However, Defendants’
“evidence” is entirely inadmissible hearsay, whereas the competent, admissible
testimony of Investigator McGriff disputes that head-on.
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23
Defendants’ Interrogatory responses are clear that only Cape (who is now
deceased)1 made the decision to fire Plaintiff (Def. Exh. B, No. 2), and therefore
only Cape would be competent to testify as to why he did that. However, there is
no deposition testimony, Affidavit or Declaration from Cape setting forth the
reason(s) for Plaintiff’s termination.
Defendants fail to advise the Court that Cape passed away without his
testimony having been preserved by deposition, Affidavit or Declaration. There is
no mention of Cape having passed away in either Defendants’ brief or their
Statement of Undisputed Facts. Instead, Defendants try to “paper over” this
“evidentiary hole” by improperly relying upon the hearsay testimony of Brannen
and Williams.
FRE 602 provides in pertinent part that a witness is competent to testify only
to matters of which he has personal knowledge. Similarly, Fed.R.Civ.P. 56(c)(4)
provides in pertinent part that, “[a]n affidavit or declaration used to support . . . a
motion [for summary judgment] must be made on personal knowledge . . .”
(Emphasis added).
Since Brannen denies any personal knowledge. (Brannen Dep. 27:3-12),
Defendants’ reliance on Brannen’s testimony as to the reason for Plaintiff’s
1
Plaintiff’s understanding is based on an email from Defendants’ counsel and an
obituary in a local publication. The Docket does not contain any filing of a
Suggestion of Death regarding Cape.
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24
discharge (Undisputed Fact No. 29) is unavailing. Defendants’ reliance on
Williams’ Affidavit (Def. Exh. B) is also unavailing because Williams did not
make the decision to fire Plaintiff. Furthermore, his Affidavit is inadmissible
because it is riddled with hearsay: ¶¶10 – 21 and 23 are all based on inadmissible
hearsay testimony of Jared Arrington, Scott Orta and other individuals.
Defendants have also failed to produce any business record that
memorializes the reason for Plaintiff’s termination. The termination letter
(Brannen Dep., Exh. 6) says only that “your services . . . will no longer be
required” without giving any reason for that decision. 2 And Brannen admitted at
his deposition that the Sheriff’s Office does not have any documents that might
qualify as a business record memorializing any reason for Plaintiff’s discharge.
(Brannen Dep. 38:17-39:21, Exhs. 2-6).3 The absence of evidence from Cape may
not be cured by any undated hearsay Postal Service statement or any subsequent
indictment, since it is only Cape – who made the decision to fire Plaintiff (Def.
Exh. B, No. 2) – who would be competent to testify as to why he did that.
It is black letter law that in an employment discrimination case “ . . . the
defendant must clearly set forth, through the introduction of admissible evidence,
2
Brannen Dep., Exh. 6, was produced by Defendants as Doc. 000316.
3
Brannen Dep., Exhs. 2-6 were produced by Defendants [Exh. 2, Doc. 000248;
Exh. 3, Doc. 000200; Exh. 4, Doc. 000244; Exh. 5, Doc. 000243, Exh. 6, Doc.
000316).
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25
the reasons for the plaintiff's rejection.” Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 255 (1981) (Emphasis added). Therefore, this Court may not infer
that Cape fired Plaintiff because he allegedly interfered with an investigation when
he warned Orta to stay away from Renee Howard. “[A] court may not assume,
based on its own perusal of the record, that the decision-maker in a particular case
was motivated by a legitimate reason when the defendant has offered none.”
Walker v. Mortham, 158 F.3d 1177, 1182 n.8 (11th Cir. 1998). See also, Lee v.
Russell County Bd. of Educ., 684 F.2d 769, 775 (11th Cir.1982) (rejecting on
appeal the legitimate nondiscriminatory reasons “assigned by the court” because
they were “not [reasons] articulated by [the decision-makers] when they were
questioned”); Increase Minority Participation by Affirmative Change Today of Nw.
Fla., Inc. (IMPACT) v. Firestone, 893 F.2d 1189, 1193–94 (11th Cir. 1990). Thus,
this Court may not infer or “assign” a legitimate nondiscriminatory motive for the
termination where the decision maker has not articulated any such motive through
admissible evidence, irrespective of the existence of any Postal Service statement 4
or subsequent indictment.
4
In any event, Defendants have not introduced any Postal Service statement by
way of competent, admissible evidence. Defendants’ Exhibit H is unsigned,
undated and unauthenticated. It may very well be material prepared after this
litigation was commenced, or after Plaintiff filed his EEOC charge.
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26
It is settled law that where the plaintiff establishes his prima facie case, but
the employer fails to meet its burden of production, the unrebutted presumption of
discrimination stands. Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1061 (11th Cir.
1994) citing, Joshi v. Florida State Univ. Health Ctr., 763 F.2d 1227, 1236 (11th
Cir.), cert. denied, 474 U.S. 948 (1985). Here, there is no doubt that Mr. Blash can
prove a case of race discrimination. See, POINT III, infra, precluding grant of
summary judgment as a matter of law.
POINT III
A “CONVINCING MOSAIC OF CIRCUMSTANTIAL EVIDENCE”
PRECUDES SUMMARY JUDGMENT
Blash may avoid summary judgment, and at a trial prove race discrimination
was the true motive for his termination, by a “convincing mosaic of circumstantial
evidence” outside of the McDonnell Douglas5 paradigm of proof.
. . . 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.
Rather, the plaintiff will always survive summary
judgment if he presents circumstantial evidence that
creates a triable issue concerning the employer's
discriminatory intent.
5
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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27
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011), (emphasis
added), citing, Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). Thus, it is
not necessary for Blash to point to a comparator because he can prove
discriminatory intent by other circumstantial evidence which amounts to “a
convincing mosaic . . . that would allow a jury to infer intentional discrimination”:
the plethora of racist statements and actions by Brannen, the toleration of them by
Cape, Brannen’s documented influence over Cape and Cape’s fear of him,
Brannen’s involvement in the termination decision, and McGriff’s testimony
directly rebutting Defendants’ argument. Smith, 644 F.3d at 1328, citing,
Silverman v. Bd. of Educ., 637 F.3d 729, 733 (7th Cir.2011).
A. Brannen’s Racist Remarks
Danny Brannen harbored racial animus (Diaz Dec. ¶¶11; Tenon Dec. ¶14;
Bray Dec. ¶¶7-14, 17, 19; Bray Dec. ¶¶5-13; Taylor Dec. ¶¶16, 26, 27, 30), and
referred to African Americans as “Niggers.” (Diaz Dec. ¶11). “[T]he term “nigger”
is a universally recognized opprobrium, stigmatizing African-Americans because
of their race.” Brown v. E. Mississippi Elec. Power Ass’n, 989 F.2d 858, 861 (5th
Cir. 1993).
Brannen admitted that he was suspended for four days for hostile behavior
towards Anthony Taylor, who is African American. (Brannen Dep. 20:3-21:13;
Blash Dec., ¶8; Taylor Dec. ¶4). There was a “town hall” in Hawkinsville to
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consider numerous complaints by African Americans of Mr. Brannen harassing
them on the basis of their race. (Bray Dec. ¶12). Brannen was aware that Johnny
Blash is African American. (Brannen Dep. 26:20-24). Cape was aware of racism
complaints against Brannen, and excused Brannen’s behavior. (Bray Dec. ¶¶5-9,
12, 13; Taylor Dec. ¶30). Since a jury could find that Cape tolerated Brannen’s
racism, evidence of Brannen’s racism “add[s] ‘color’ to the employer's
decisionmaking processes and to the influences behind the actions taken with
respect to the individual plaintiff.” Risch v. Royal Oak Police Dep't, 581 F.3d 383,
392 (6th Cir. 2009)(quoting Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d
344, 356 (6th Cir.1998)).
B. This Court’ Should Revisit Its Prior Rejection of a “Cat’s Paw” Theory
This Court’s prior denial of a “cat’s paw” theory because Cape offered Blash
resignation in lieu of termination is legally and factually erroneous and should be
revisited by the Court on this motion for summary judgment. (Doc. 37, pp. 13-14).
This Court’s rationale, without any case citation, that there can be no cat’s
paw theory because Caper’s offer of resignation proved that Cape was
“autonomous and deliberative” as a matter of law, is undermined by the case law
that under the circumstances here, the “offer of resignation” was the same as
termination. Anthony Taylor confirmed that Cape told him that Blash’s choice was
immediate resignation or immediate termination. [Taylor, Dec. ¶24, Blash Dec.
20
29
¶13). An “immediate ‘resign or be fired’ ultimatum” is tantamount to an actual
termination. Odom v. Citigroup Glob. Markets Inc., 62 F. Supp. 3d 1330, 1339–40
(N.D. Fla. 2014); Ross v. United States Capitol Police, 195 F. Supp. 3d 180, 202
(D.D.C. 2016). “[T]he employee does not have a choice at all…; rather the
employee has been terminated.” Odom, 62 F. Supp. 3d at 1339–40. Thus, the offer
to immediately or immediately be fired, is a distinction without a difference.
Even assuming, arguendo, that there is a difference between immediate
resignation or immediate termination, Cape’s decision to “offer” to Blash
resignation in lieu of termination was not insulated from Brannen’s racial animus
under the Supreme Court’s seminal decision in Staub v. Proctor Hospital, 562 U.S.
411 (2011), because a reasonable jury could find that Cape’s decision was
influenced by Brannen’s racial animus. This Court’s decision that Cape’s offer of
resignation in lieu of immediate termination constituted Cape’s “autonomy” from
Brannen, misapprehended that under Staub Blash need only prove that Brannen
influenced that decision. Staub, 562 U.S. at 422
. . . if a supervisor performs an act motivated by

[unlawful] . . . animus that is intended by the supervisor
to cause an adverse employment action, and if that act is
a proximate cause of the ultimate employment action,
then the employer is liable . . .
Id., 562 U.S. at 422.
21
30
Defendants themselves state that Brannen met with Cape “to discuss
Plaintiff’s fate.” ( Undisputed Fact No. 26) This admission must be construed in
Blash’s favor, in addition to other record evidence of Brannen’s influence over
Cape: Brannen effectively ran the Sheriff’s Office because then-Sheriff Cape was
afraid of and deferred to him. (Diaz Dec. ¶¶6,7; Blash Dec. ¶9); Cape had ordered
Brannen to undergo anger management and admitted to Diaz that he didn’t want
“to get Danny bothered” because he knew Brannen had a quick temper (Brannen
Dep. 15:15-16:15; Diaz Dec. ¶¶6,7); Brannen, as Captain, would have been the
person to recommend Blash’s termination (Blash Dec. ¶10); Cape discussed the
issue of terminating Blash with Brannen before Cape made the decision to fire
Blash (Brannen Dep. 29:10-30:1); and Brannen was present when Blash was
terminated (Id., 30:20-32:1).
The Eleventh Circuit has stated that “ ‘[d]erogatory remarks indicative of a
discriminatory attitude’ are generally admissible to prove discriminatory
treatment.” Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 655–56 (11th Cir.
1993). “[S]tatements made by a supervisory official who plays some role in the
decision making process are generally admissible.” Zaben v. Air Prod. &
Chemicals, Inc., 129 F.3d 1453, 1456 (11th Cir. 1997). “[A] plaintiff may offer
circumstantial proof of intentional discrimination on the basis of [race] in the form
of a supervisor’s statement relating to formal or informal managerial attitudes held
22
31
by corporate executives.” Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 132
(3d Cir. 1997), cited with approval by the 11th Circuit in Damon v. Fleming
Supermarkets of Florida, Inc., 196 F.3d 1354, 1361–62 (11th Cir. 1999). Such
evidence is often crucial to the fact finder’s determination of whether the
employer's reason is a pretext and as to whether the employer intentionally
discriminated against the employee. (Id.); Bass v. Bd. of Cnty. Comm'rs, 256 F.3d
1095, 1105 (11th Cir.2001) (Statements of discriminatory intent made by a person
involved in the challenged decision); overruled on other grounds by Crawford v.
Carroll, 529 F.3d 961, 971 (11th Cir.2008); Ross v. Rhodes, 146 F.3d 1286, 1291
(11th Cir.1998)(in Title VII race discrimination case, racist remark of a supervisor
involved in the termination made 4 years prior to termination could be
circumstantial evidence of discrimination); Rojas v. Florida, 285 F.3d 1339, 1343
(11th Cir.2002) (a supervisor's racially-biased remark which is not directly related
to the employment decision “can contribute to a circumstantial case for pretext”);
Jones v. Gerwens, 874 F.2d 1534, 1541 n. 13 (11th Cir.1989) (“[T]he ‘[d]isparate
treatment analysis requires that none of the participants in the decision-making
process be influenced by racial bias.’”)
“[D]iscriminatory comments by an executive connected with the
decisionmaking process will often be the plaintiff’s strongest circumstantial
evidence of discrimination” and are “highly relevant.” Abrams v. Lightolier Inc.,
23
32
50 F.3d 1204, 1215 (3d Cir. 1995), cited with approval by the 11th Circuit in
Zaben, 129 F.3d 1453, 1456 (11th Cir. 1997); Smith v. City of New Smyrna Beach,
588 Fed. App’x. 965, 976, 978 (11th Cir. 2014); Quigg v. Thomas County School
District, 814 F.3d 1227, 1241-42 (11th Cir. 2016); Dominguez-Curry v. Nevada
Transp. Dep’t., 424 F.3d 1027, 1038 (9th Cir. 2005) (discriminatory remark
against a member of the plaintiff’s class allows the conclusion that discriminatory
animus played a role in the challenged decision.”)
POINT IV
CAPE IS NOT ENTITLED TO
QUALIFIED IMMUNITY BECAUSE
PLAINTIFF DISPUTES THE EXISTENCE
OF A LAWFUL MOTIVE
The right to be free from intentional race discrimination, including with
respect to termination, is clearly established. Rioux v. City of Atlanta, 520 F.3d
1269, 1282 (11th Cir. 2008). Defendant Cape’s reliance on Rioux, Stanley v. City
of Dalton, Ga., 219 F.3d 1280, 1294 (11th Cir. 2000) and Foy v. Holston, 94 F.3d
1528 , 1534 (11th Cir. 1996) is misplaced because here Plaintiff disputes the
existence of a lawful motive for his termination. Defendant Cape’s assertion (Def.
Br. 18) that “[q]ualified immunity is possible where ‘an adequate lawful motive is
present’ even though ‘a discriminatory motive might also exist’” is unpersuasive
since in the cases cited, unlike here, it was undisputed that the Plaintiff had
engaged in conduct justifying termination.
24
33
Blash’s warning to Orta was consistent with common police practice to tell
familiar civilians to avoid a situation or be careful. Plaintiff had no knowledge of
any ongoing investigation, had in fact been told that the sting had been successful
and was over, and he had no reason to suspect that his warning to Orta might
compromise any investigation. Orta was never even a person of interest. According
to McGriff, Blash did nothing wrong. The fact that Brannen and Cape might have
used Plaintiff’s warning to Orta to manufacture a trumped-up reason to fire him,
when the real motive behind the discharge was racial animus, does not on these
facts, permit Defendant Cape to establish the undisputed existence of lawful
motive for the discharge, making Defendant Cape’s reliance on Rioux, Stanley and
Foy unavailing. Thus, in Unique Sols., LLC v. Murray, 2009 WL 10696658, at
*25 (S.D. Ga. Mar. 25, 2009), the court found “ . . . Rioux to be inapposite because
the undisputed summary judgment facts in Rioux established that the defendants
had mixed motives (lawful and unlawful motivations) behind their conduct. In
such a case, it is undisputed that the adverse employment action was motivated, at
least in part, by an objectively valid reason. (Emphasis added). Since here, it is
disputed that the termination was motivated in part by a lawful reason, qualified
immunity is not available.
CONCLUSION
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
SHOULD BE DE DENIED
25
34
Respectfully submitted this 13th day of June 2019.
s/Robert N. Marx
Robert N. Marx
Georgia Bar No. 475280
Jean Simonoff Marx
Attorneys for Plaintiff
Marx & Marx, L.L.C.
1050 Crown Pointe Parkway
Suite 500
Tel. (404) 261-9559
Email: lawyers@marxlawgroup.com
26
35
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
------------------------------------------------------x
JOHNNY BLASH, :
Plaintiff, :
vs. : CIVIL ACTION

FILE NO. 5:17-00380-TES
BILLY CAPE; and DANNY BRANNEN,
in his Official Capacity as :
Sheriff, Pulaski County, Georgia,
:
Defendants.
------------------------------------------------------x
CERTIFICATE OF SERVICE
This is to certify that on June 13, 2019, I electronically filed Plaintiff’s

Memorandum of Law in Opposition to Defendants’ Motion for Summary
Judgment, with Exhibits thereto, Plaintiff’s Responses to Defendants’
Statement of Undisputed Facts, and Plaintiff’s Statement of Disputed Facts,
with the Clerk of the Court using the CM/ECF system which will automatically
send email notification of such filing to the following attorney of record:
Donald Andrew Cronin, Jr., Esq.

103 Keys Ferry Street
McDonough, GA 30253
donald@oqclaw.com
Respectfully submitted this 13th day of June 2019.
s/Robert N. Marx
Robert N. Marx
Jean Simonoff Marx
27
36

Attorneys for Plaintiff
Marx & Marx, L.L.C.
Suite 500
Tel. (404) 261-9559
Email: lawyers@marxlawgroup.com
28
37
TAB 3
Deposition of Danny Brannen
38
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CERTIFICATE OF SERVICE
I hereby certify that I have this day filed a true and correct copy of the
within and foregoing Appendix of Appellees using the CM/ECF system which
will automatically send email notification of such filing to the following attorneys
of record:
Robert N. Marx, Esq.

Jean Marx, Esq.
Marx & Marx, LLC
Suite 500
Atlanta, GA 30338
Lawyers@marxlawgroup.com
This 2nd day of September, 2020.
OWEN, GLEATON, EGAN, JONES &

SWEENEY, LLP
/s/Derrick L. Bingham
DERRICK L. BINGHAM, ESQ.
303 Peachtree Street, N.E.

Suite 2850
(404) 688-2600
107

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USCA11 Case: 20-10337 Date Filed: 09/02/2020 Page: 1 of 107

IN THE UNITED STATES COURT OF APPEALS

Appeal No. 20-10337-D

WILLIAM B. CAPE and DANNY BRANNEN,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

Derrick L. Bingham, Esq., Georgia Bar No. 141217

Owen Gleaton Egan Jones & Sweeney, LLP

Attorneys for Appellees

Index to Appendix for Appellees

Plaintiff’s Memorandum of Law in Opposition to

IN THE UNITED STATES DISTRICT COURT

vs. : CIVIL ACTION

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO

Brannen Wielded Disproportionate Power in the Sheriff’s Office

Danny Brannen was Involved in Johnny Blash’s Termination

30:130:20-32:1). The recommendation for Blash’s discharge would normally be

initiated by Brannen as Captain of the Patrol Division. (Blash Dec. ¶10).

Undisputed Fact No. 26.

At all Relevant Times Danny Brannen Harbored Racial Animus

Brannen referred to African Americans as “Niggers.” On one occasion in the

summer or fall of 2017, Brannen responded to a call to the Sheriff’s Office

from African American citizens of Hawkinsville about racist treatment by

demanding they answer questions, and on at least one occasion physically

There was a “town hall” in Hawkinsville to address numerous complaints by

15:15-1615, 20:3-21:13; Blash Dec., ¶8).

Brannen Behaved as if he could Disregard the Law

In addition to the aforesaid racial harassment of African Americans in

Sheriff this was improper. (Diaz Dec. ¶10).

Disparate Treatment of Plaintiff on the Basis of Race Before His Discharge

including for job infractions, which they implemented in a racially discriminatory

Disparate Treatment of African Americans by Brannen and Cape

African American and Caucasian Sheriff’s Deputies were treated differently

Blash was Unaware of any Postal Service Investigation

Robert McGriff was Chief Investigator of the Pulaski County Sheriff’s

stopped at a particular corner in Hawkinsville and had received what appeared to

Renee Howard was successfully detained. (McGriff Dec. ¶15).

(McGriff Dec. ¶16).

Orta was never a person of interest or the intended target of the

investigation or sting operation. (McGriff Dec. ¶17).The investigation was never

Blash’s Warning to Scott Orta did not Compromise any Investigation

approaching him about his pain medication. (Blash Dec. ¶4).

to Mr. Orta would have any impact on any investigation.(Id.). According to

McGriff “Blash did not do anything wrong.” (McGriff Dec., ¶20).

any termination decision be held in abeyance pending an investigation by the

Georgia Bureau of Investigation (“GBI”). When Caucasian Deputies had been

accused of infractions that could have resulted in discharge, any termination

excessive force when arresting an African American, no termination decision was

specifically requested it. (Blash Dec. ¶12; Taylor Dec. ¶¶18-20).

named in the [EEOC] charge” is not a jurisdictional naming requirement

conferring or denying a district court of subject matter jurisdiction. Jackson v.

Eleventh Circuit, the naming requirement is interpreted liberally to “permit

discrimination alleged in appellants' original charges to have reasonably triggered

examin[e] the specific discriminatory conduct alleged to see if it implicated the

defendants”. Jackson v. Seabord, 678 F.2d at 1010. The purpose of liberally

construing the naming requirement is to avoid creating a burdensome technical

(11th Cir. 2008). The “naming precondition . . . must be liberally construed.”

had an adequate opportunity to participate in the reconciliation [sic] process; and

App’x at 456–57. Another factor is “whether an investigation of the unnamed party

identity or participation in the alleged discrimination is or is likely to be uncovered