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Blash v. City of Hawkinsville

United States District Court, M.D. Georgia, Macon Division

December 30, 2019

JOHNNY BLASH, Plaintiff,



         This case could easily boast of a thick, dense record, full of thorny and tangled racially-charged issues. But, when you dispassionately focus on the legal issues, the critical question the Court must answer really boils down to this: if a local sheriff suspects one of his deputies has acted improperly (or even criminally), must he provide that deputy with an independent criminal investigation in order to comply with the Constitution and Title VII?

         The short answer is no.


         Without getting too detailed early on, Plaintiff, former-Deputy Sheriff Johnny Blash, allegedly compromised and interfered with the United States Postal Service's (“USPS”) investigation into one of its employees suspected of stealing medication from postal customers. When Former Sheriff and now-deceased Defendant Billy W. Cape learned of the allegations regarding Blash, he fired him. Now, Blash contends that he was subjected to a hostile work environment while employed with the Pulaski County Sheriff's Office and that his race--not the supposed interference with the USPS investigation--was the true motivating factor behind Defendant Cape's refusal to investigate his alleged misconduct.

         Elaborated in more detail in previous Orders, the Court, with Blash's consent, dismissed his hostile work environment and race-discrimination claims asserted against the Pulaski County Sheriff's Office and Pulaski County, Georgia. [Doc. 100 at p. 8]; [Doc. 37 at pp. 8-11]. Following a lengthy analysis, the Court also previously dismissed Blash's hostile work environment claims against Defendant Cape and Defendant Danny Brannen. [Doc. 37 at pp. 11-26]. Now, only three claims remain: a race-discrimination claim asserted under 42 U.S.C. § 1981 against Defendant Cape[1] in his individual capacity; and two race-discrimination claims against Defendant Brannen in his official capacity, one asserted under Title VII of the Civil Rights of 1964 and the other asserted under 42 U.S.C. § 1981.[2]

         When confronted with a defendant's motion for summary judgment on claims for race discrimination under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, a plaintiff must make a sufficient factual showing to permit a reasonable jury to rule in his favor. While this can be done in a variety of ways, perhaps the most familiar-and most apt to this case-is the three-part burden shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The McDonnell Douglas framework places the initial burden on a plaintiff to establish a prima facie case of race discrimination by proving that he was treated differently from some other “similarly situated” individual or “comparator.” Lewis v. City of Union City, 918 F.3d 1213, 1217 (11th Cir. 2019) (“Lewis I”) (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 258-59 (1981)).

         In arguing that Blash cannot show a valid comparator, Defendants cite to the recently-abrogated Holifield v. Reno, for the proposition that “[t]o make a comparison of [a] plaintiff's treatment to that of non-minority employees, [that] plaintiff must show that he and the employees are similarly situated in all relevant respects.” 115 F.3d 1555, 1562 (11th Cir. 1997) (abrogated by Lewis I, 918 F.3d 1213). However, over a month before Defendants Cape and Brannen filed their Motion for Summary Judgment [Doc. 64] applying the Holifield standard, the Eleventh Circuit Court of Appeals decided Lewis I “[i]n an effort to clean up, and to clarify once and for all” its self-described “mess” with regard to comparator analyses and answer “[t]he obvious question: Just how ‘similarly situated' must a plaintiff and [his] comparator(s) be?” 918 F.3d at 1217-18. In Lewis I, the Eleventh Circuit Court of Appeals held that “the proper test for evaluating comparator evidence is neither plain-old ‘same or similar' nor ‘nearly identical,' as . . . past cases have discordantly suggested.” Id. at 1218. Instead, “a plaintiff asserting an intentional-discrimination claim under McDonnell Douglas must demonstrate that [he] and [his] proffered comparators were ‘similarly situated in all material respects.'” Id. That being said, the Court's comparator analysis relies on the new standard announced in Lewis I.


         Taking all reasonable inferences in Blash's favor, the facts of this case are as follows.

         Prior to working for Pulaski County, Georgia, Blash worked for the City of Hawkinsville as a police officer. [Doc. 78, Blash Depo., pp. 31:23-32:1]. In 2010, the City of Hawkinsville and Pulaski County reached an agreement for the Pulaski County Sheriff's Office to hire city police officers. [Id. at p. 32:2-6]. Within his first year of employment, Blash received positive feedback on his work performance and a recommendation for a raise. [Doc. 70-8 at pp. 2-3]. On a scale including scores of “Excellent, ” “Good, ” “Fair, ” and “Poor, ” Blash received a score of “Good” for all categories including, among others, honesty, work quality, cooperation, working relations, and communication skills. [Id. at p. 2]. However, despite this seemingly promising review, Defendant Cape fired Blash on December 1, 2014.[3] [Doc. 64-2 at ¶ 28].

         According to Blash, sometime in late spring or early summer 2014, while on routine patrol, he spoke to Scott Orta, “a local handyman who[, ] from time to time[, ] worked on [his] house.” [Doc. 70-2 at ¶¶ 60-61]. During this conversation, Orta mentioned to Blash “that a postal driver named Renee [Howard] had been approaching him about his pain medication.” [Id. at ¶ 61]; [Doc. 70-15 at ¶¶ 4-5]. Around that time, Renee Howard was under surveillance (ostensibly from the USPS) because she was suspected of stealing medication from postal customers while carrying out her postal route. [Doc. 70-2 at ¶¶ 48, 51]; [Doc. 64-3, Williams Aff., ¶ 4]. Then around late October or November 2014, Chief Investigator Robert McGriff showed Blash a photograph of a man who Blash identified as Scott Orta.[4] [Doc. 70-2 at ¶¶ 47, 53-54]; [Doc. 70-15 at ¶ 5].

         On November 23, 2014, supposedly after the conclusion of the USPS investigation and Renee Howard's arrest, [5] Blash saw Orta while he (Blash) was “on normal patrol duties” and “motioned for Orta to come speak to him.” [Doc. 70-2 at ¶ 62 (citing [Doc. 70-15, Blash Dec., ¶¶ 6-7])]; [Doc. 11-1 at p. 3]; [Doc. 36]. It was then that Blash “cautioned [Orta] to ‘stay away from Renee.'” [Doc. 70-2 at ¶ 62]. By Blash's account, at the time he warned Orta about Renee Howard, he “was not advised or aware that there was any ongoing investigation regarding [her].” [Id. at ¶¶ 65-66]; see also [Doc. 70-15, Blash Dec., ¶ 7]. In fact, Robert McGriff apparently told Blash, “several weeks before” that “the sting operation was over” because “they ‘got' Renee.” [Doc. 70-2 at ¶ 65]; [Doc. 70-15, Blash Dec., ¶ 7]. Based on this, Blash contends that he had no reason to believe that any word of caution to Scott Orta would impact any investigation. [Doc. 70-2 at ¶ 66]; [Doc. 70-15, Blash Dec., ¶ 7]. However, Blash never explained why he would tell Orta to stay away from Renee Howard if she had in fact already been arrested and the criminal investigation had already been concluded.

         On December 1, 2014, “[w]hen [Defendant] 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').” [Doc. 70-1 at ¶ 28]; see also [Doc. 70-2 at ¶ 68]. Presumably, Blash requested a GBI investigation to show that the USPS investigation was not active when he warned Orta about Renee. See n.5, supra. These independent investigations are “conducted by a law enforcement agency [that is] not connected to the Pulsaki County Sheriff's Office . . . to ensure fairness.” [Doc. 78, Blash Depo., pp. 41:17-42:2]. For example, when two Caucasian deputies, Chris White and Jordan Peavy, were accused of using excessive force against an arrestee, they received a GBI investigation to verify their misconduct before any termination decision was made. [Doc. 70-2 at ¶¶ 70-71]. “[U]ltimately, ” this GBI investigation “cleared them of the allegations.” [Doc. 78, Blash Depo., p. 41:12-16].

         Based on these facts, Blash alleges that Defendant Cape denied him a GBI investigation because of his race and color. [Doc. 58 at ¶ 6]. The pre-discovery theory of Blash's case was that his supervisor (and deputy sheriff), Defendant Brannen, created a hostile work environment towards African Americans which Defendant Cape, as the former sheriff, allowed and tolerated. [Id. at ¶ 15, 17-19]. The Court previously dismissed Blash's hostile work environment claims brought via 42 U.S.C. § 1981, because he was unable to allege that Defendant Brannen's comments or behavior were so severe or pervasive that they altered the terms and conditions of his employment and created a discriminatorily abusive working environment. [Doc. 37 at pp. 14-21]. Now, in his Response to Defendants' summary judgment motion, Blash attempts to fix this pleading inadequacy by bringing evidence of more racially-charged incidents involving Defendant Brannen that he uncovered during discovery. See [Doc. 70 at pp. 2- 5]; see also [Doc. 70-2 at ¶¶ 14-28, 32-34].

         As more fully explained in the Court's Order Denying Plaintiff's Motion for Reconsideration, these new allegations should have been included in a Second Amended Complaint in order for the Court to consider them. See generally [Doc. 100]. However, Blash did not attempt to file such a complaint, and the parties appear to-at the summary judgment stage-affix a new theory to this case. Blash now contends that the lack of a formal investigation before his termination indicates that he was fired for a pretextual reason, concocted by Defendants to cover up Defendant Cape's racial animus behind the decision. See [Doc. 70-1 at ¶ 31]. Essentially, Blash maintains that his termination was “based upon . . . bogus allegations” with respect to his involvement with the USPS investigation, because the investigation “had already . . . concluded” at the time he told Orta to stay away from Renee. [Doc. 58 at ¶¶ 23, 38]; [Doc. 70-2 at ¶ 64].[6]

         In addition to Blash's claim that his termination was for “bogus” reasons, he asserts that it was common practice for officers to warn citizens “with whom they were familiar” about associating with suspected persons. [Doc. 70-2 at ¶¶ 62-63]; [Doc. 58 at ¶ 24]. At any rate, Blash's entire case is premised on the contention that he was discriminatorily denied a GBI investigation that could have shown that the reason given for his termination was “bogus, ” and that he, in fact, “did not do anything wrong.” [Doc. 58 at ¶¶ 35-38]; [Doc. 70-16, McGriff Dec., ¶ 20].


         Before turning to the summary judgment motion, the Court must resolve Blash's numerous hearsay-based objections to Defendant Brannen's deposition, his interrogatory responses, and the Affidavit of Jay Williams [Doc. 64-3]. [Doc. 79]. “The general rule is that inadmissible hearsay cannot be considered on a motion for summary judgment.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1293 (11th Cir. 2012) (quoting Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir.1999)). However, “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.” Id. at 1293-94 (quoting Macuba, 193 F.3d at 1323); see also Fed. R. Evid. 801.

         But, as noted earlier in the record, Defendant Cape died during the pendency of this litigation, and neither side obtained any testimony from him. [Doc. 88]; [Doc. 98]; [Doc. 99]. Therefore, to the extent any testimony is predicted on words allegedly spoken by Defendant Cape, the Court SUSTAINS Blash's hearsay objections so that the Court will not consider any such statements.

         However, the Court OVERRULES any objection related to the Affidavit of Jay Williams. [Doc. 64-3]. Jay Williams worked as a deputy sheriff in Pulaski County at all relevant times for this case, and for a portion of that employment he received an assignment to work with the Oconee Drug Task Force. Jay Williams' affidavit provides an account of the events surrounding this case and his assistance to the USPS in connection with its investigation of Renee Howard.

         Blash argues that Federal Rule of Evidence 602 “provides in pertinent part that ‘[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” [Doc. 79 at p. 2 (citing Fed.R.Evid. 602)]. Regarding Jay Williams' affidavit, Blash objects to the following statements on the basis that they are largely based on inadmissible hearsay:

Paragraph 10: “After the pre-operation briefing, Agent Arrington contacted [Jay Williams] and stated that the postal investigation may be compromised[, ] because its existence had been leaked to Scott Orta.”
Paragraph 11: “Agent Arrington advised [Jay Williams] that the female postal worker reported receiving a call from Scott Orta. By this time, the female postal worker had agreed to be a cooperating witness.”
Paragraph 12: “Agent Arrington further advised [Jay Williams] that according to the female postal worker, Orta communicated to her that an unnamed Pulaski County [d]eputy advised Orta to stay away from the female postal worker.”
Paragraph 13: “Agent Arrington indicated that the female postal worker was worried about her safety[, ] because she had been assured that her role as a cooperating witness would remain secret.”
Paragraph 15: “After learning of the leak, Agent Arrington and [Jay Williams] interviewed Scott Orta. During that interview, Orta communicated that Deputy Blash saw him at a grocery store and directed Orta to follow him to a baseball field in town.”
Paragraph 16: “During his interview, Orta relayed that when he arrived at the baseball field, Blash told him that he needed to pay attention to what was going on around him.”
Paragraph 17: “Orta further revealed during the interview that when he asked Blash what he meant, Blash responded by stating ‘Renee,' which was the first name of the female postal worker.”
Paragraph 18: “Orta confirmed during the interview that he called the female postal worker after his conversation with Blash.”
Paragraph 19: “Upon learning about Blash's conduct, Agent Arrington told [Jay Williams] that either [Jay Williams] would advise [his] superiors of Blash's conduct or Arrington would ‘handle it.' In response, [Jay Williams] advised Agent Arrington that [Jay Williams] preferred to bring Blash's conduct to the attention of [Jay Williams'] supervisor at the Pulaski County Sheriff's Office, Major Freemont.”
Paragraph 20: “Shortly thereafter, [Jay Williams] briefed Major Freemont that Blash had compromised the postal investigation. In particular, [Jay Williams] communicated that Blash had revealed the existence of the investigation to a suspect who, in turn, advised the female postal worker that a Pulaski County [d]eputy warned the suspect to stay away from her.”
Paragraph 21: “[Jay Williams] also communicated to Major Freemont that the female postal worker communicated to Agent Arrington that the conversation with the suspect made her nervous about being a cooperating witness.”
Paragraph 22: “While briefing Major Freemont, [Jay Williams] expressed [his] opinion that Blash potentially compromised the safety of the female postal worker as the suspect could have flipped and harmed her.”
Paragraph 23: “[Jay Williams] also communicated to Major Freemont that Agent Arrington advised [Jay Williams] that the USPS would ‘handle' Blash if the Pulaski County Sheriff's Office did not take internal action.”

[Doc. 64-3 at ¶¶ 10-13, 15-18, 20-23]; [Doc. 79 at pp. 14-16]. However, none of these statements are made by declarants who are, to the Court's knowledge, unavailable; and if necessary, Jay Williams could testify as to what he said, as could both Scott Orta, Agent Jarrett Arrington, and Major Jason[7] Freemont.

         In the end though, none of these hearsay-based arguments even matter. It doesn't matter what was said in each of these comments, because yes, they may very well constitute hearsay if they cannot be reduced to admissible form. See Fed. R. Civ. P. 56(c)(2). Who said what to whom, and how whatever was said ultimately landed on Defendant Cape's ears is irrelevant. Certainly, a factual statement that someone spoke to another person is not hearsay. Hearsay goes one step further and looks to the contents of what was said in that statement. So, the Court can undoubtedly conclude that somehow, something--through a conduit of what seems to be three different people-- made its way to Defendant Cape. What it is, we don't know and it's irrelevant, because Defendant Cape made the decision to terminate Blash. Even omitting this convoluted, and ultimately useless evidence, this chain of communication provides no help in resolving the race-discrimination issue before the Court. At the end of the day, Blash must prove that Defendant Cape fired him because he is black.

         Blash seems to be of the impression that “Defendants[ ] fail[ed] to preserve [Defendant] Cape's testimony while he was still alive.” [Doc. 79 at p. 11]. Regardless of which side needed Defendant Cape's testimony--no one obtained any testimony from Defendant Cape. If neither side thought it important, they're clearly mistaken. While death is--sometimes--the most unpredictable and unexpected thing a person can encounter, ...

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