POTTER v. DOOLY COUNTY GEORGIA et al
ORDER DENYING 66 Motion for Leave to Appeal. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 11/29/2016. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
DOOLY COUNTY, et al.,
CIVIL ACTION NO. 5:14-CV-315 (MTT)
Defendants Dooly County and Peavy have moved for permission to file an
interlocutory appeal. Doc. 66. In an Order on Motion for Summary Judgment (Doc. 53)
and an Order on Motion for Reconsideration (Doc. 62), the Court allowed various claims
of the Plaintiff to proceed. None of the issues raised by the Defendants involve a
controlling question of law as to which there is substantial ground for difference of
opinion. Accordingly, the Motion is DENIED.
In her Amended Complaint against Defendants Dooly County, the Estate of
Lucius Van Peavy (“Peavy”), and Don Williford, the Plaintiff alleges claims for First
Amendment violation under the federal and Georgia constitutions; racial discrimination
under Section 1981, Title VII, and the Fourteenth Amendment’s Equal Protection
Clause; and tortious interference with business employment relations. Doc. 35. The
Defendants moved for summary judgment. Doc. 37. The Court granted summary
judgment or declined to exercise supplemental jurisdiction as to the First Amendment
claims against the three Defendants, all Section 1983 claims against Williford in his
official capacity, the Plaintiff’s request for punitive damages against Peavy and Dooly
County, the Plaintiff’s request for punitive damages against Williford based on the First
Amendment retaliation claim, and the claim against Peavy for tortious interference with
business employment relations. Doc. 53 at 29. The Court denied summary judgment
as to the equal protection race discrimination claims against Dooly County and against
Williford in his individual capacity, the Title VII claim against Dooly County, and the
request for punitive damages against Williford based on the Plaintiff’s race
discrimination claim. Id. The Plaintiff then moved to reconsider the summary judgment
order. Doc. 58. The Court denied the motion to reconsider in part and granted it in part,
reinstating the Plaintiff’s federal First Amendment claim against Peavy and exercising
supplemental jurisdiction over the claims against Peavy under the First Amendment of
the Georgia Constitution and the tortious interference with business employment
relations. Doc. 62 at 5.
Williford and Peavy each appealed the Court’s decision denying them qualified
immunity. Docs. 56; 64. Those appeals are pending in the Eleventh Circuit.1
Dooly County and Peavy moved for permission to file an interlocutory appeal on
the remaining claims not already on appeal: the Title VII racial discrimination claim
against Dooly County, the First Amendment claim under the Georgia Constitution
against Peavy, and the Georgia state law claim of tortious interference with business
employment relations against Peavy. Doc. 66 at 2.
The Defendants moved the Eleventh Circuit to stay those proceedings until this Court ruled on the
Motion for Permission to File an Interlocutory Appeal (Doc. 66), but the Eleventh Circuit denied the
motion. Doc. 73.
Pursuant to 28 U.S.C. § 1292(b), an interlocutory appeal is appropriate when it
“involves a controlling question of law as to which there is substantial ground for
difference of opinion and . . . an immediate appeal from the order may materially
advance the ultimate termination of the litigation.” The Eleventh Circuit has made clear
that there is a strong presumption against interlocutory appeals, calling them a “rare
exception.” McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1264 (11th Cir. 2004).
Interlocutory appeals “were intended, and should be reserved, for situations in which the
court of appeals can rule on a pure, controlling question of law without having to delve
beyond the surface of the record in order to determine the facts.” Id. at 1259. In
contrast, “[t]he antithesis of a proper § 1292(b) appeal is one that turns on whether
there is a genuine issue of fact or whether the district court properly applied settled law
to the facts or evidence of a particular case.” Id.
Despite the Eleventh Circuit’s warning that such appeals are rare exceptions, the
Defendants identify six questions for interlocutory appeal. Since at least one question
corresponds to each of the claims the Court allowed to proceed (except for the qualified
immunity denials, which are already before the Eleventh Circuit), “the Defendants
request permission to file an interlocutory appeal as to all remaining claims not
presently on appeal.” Doc. 66 at 2. The Court considers each question the Defendants
raise, grouped by the claim to which the questions correspond.
Title VII Claim Against Dooly County
As to the Title VII claim against Dooly County, the Defendants argue that the
following issues warrant interlocutory appeal: (1) whether the Plaintiff raised a genuine
dispute to Dooly County’s non-discriminatory explanation for not promoting the Plaintiff,
and (2) whether the Plaintiff met her burden of establishing a prima facie case of racial
discrimination. Doc. 66 at 5-6.
Both of these issues relate to the Court’s application of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, a plaintiff must show the
following to present a prima facie case of discriminatory failure to promote: (1) she is a
member of a protected class, (2) she was qualified for and applied for the promotion, (3)
she was rejected, and (4) other equally or less qualified employees who are not
members of the protected class were promoted. Denney v. City of Albany, 247 F.3d
1172, 1183 (11th Cir. 2001) (internal citation omitted). If the plaintiff establishes a prima
facie case of discrimination, the burden shifts to the defendant to state a legitimate,
nondiscriminatory reason for the promotion decision. Texas Dep’t. of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254 (1981). If the defendant proffers a nondiscriminatory
reason, the plaintiff may present evidence that the proffered nondiscriminatory reason is
merely pretext for discrimination. Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304,
1308 (11th Cir. 2012). In this case, the Court found that the Plaintiff established her
prima facie case: the Plaintiff was objectively qualified for the promotion, and the
Defendants did not challenge the Plaintiff’s proof of the other elements. Doc. 53 at 2324. The Court further found that the Defendants proffered a legitimate,
nondiscriminatory reason for the promotion decision—the Plaintiff’s interpersonal
difficulties with colleagues. Id. at 24. Finally, the Court found that the Plaintiff
presented a genuine issue of fact as to whether the Defendants’ proffered reasons were
pretext for discrimination, sufficient to survive summary judgment. Id. at 25-26.
Seeking interlocutory appeal, the Defendants do not identify ambiguous
questions of law; they simply disagree with the Court’s application of McDonnell
Douglas to the facts of this case. First, the Defendants argue that the Plaintiff did not
raise a genuine dispute as to Dooly County’s proffered nondiscriminatory explanation.
The Defendants object to the Court’s reliance on certain evidence. These objections
are factual, not legal: the Defendants argue that the Plaintiff’s evidence does not
contradict Williford’s proffered nondiscriminatory explanation because (1) testimony of
the Plaintiff’s colleagues did not actually contradict Williford’s testimony that he collected
the Plaintiffs’ colleagues’ opinions before choosing not to promote her; (2) the
colleagues’ testimony that the Plaintiff was not worse than any other colleague did not
change the fact that “the deposition testimony overwhelmingly demonstrated the other
EMTs’ disdain for her,” and therefore the testimony does not refute the
nondiscriminatory explanation; and (3) pressure from the Board of Commissioners to
hire an African-American candidate could not have harmed the Plaintiff, because the
allegedly discriminatory decision was to promote the African-American candidate, not to
hire her.2 Doc. 66 at 3-5. The Defendants argue that a proper question for interlocutory
appeal, therefore, is whether a racially-tinged statement alone (since the other evidence
cannot establish pretext) can be sufficient to create a genuine issue of material fact as
to pretext. Id. at 5.
The Court’s summary judgment decision did not raise that legal question. The
disputes raised by the Defendants are factual, and in pretext disputes, “factual
determinations [are] generally unsuitable for disposition at the summary judgment
As Potter aptly notes, the third point is “preposterous.” Doc. 70 at 9. It would be factually preposterous
if argued in support of a motion for summary judgment, but is even more so when offered to support an
argument that an interlocutory appeal should be allowed.
stage.” Hairston v. Gainesville Sun Publ’g. Co., 9 F.3d 913, 919 (11th Cir. 1993). The
Plaintiff has safely met her burden to demonstrate “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate
reasons for its action that a reasonable factfinder could find them unworthy of
credence.” Rioux v. City of Atlanta, 520 F.3d 1269, 1275 (11th Cir. 2008) (quoting
Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (internal quotation
marks and citation omitted)).
Second, the Defendants argue that the Plaintiff failed to establish a prima facie
case of race discrimination, because evidence that the Court characterized as
“subjective” is instead “objective.” Doc. 66 at 5-6. Specifically, the Defendants contend
that the Plaintiff’s inability to get along with colleagues is an objective quality that
rendered her unqualified for the promotion. But the ability to “get along” is subjective; in
contrast, objective qualifications include length of experience, education level, and
certifications. See Vessels v. Atlanta Indep. Sch. Syst., 408 F.3d 763, 768-69 (11th Cir.
2005) (per curiam) (affirming the district court’s finding that “leadership style” is a
subjective qualification, in contrast with “education, years of experience, and state
These questions, “turn[ing] on whether there is a genuine issue of fact or whether
the district court properly applied settled law to the facts or evidence of a particular
case,” are the exact types of question McFarlin described as the “antithesis of a proper
§ 1292(b) appeal.” 381 F.3d at 1259. The Court declines to certify them.
First Amendment Claim Under the Georgia Constitution Against
Regarding the First Amendment claim under the Georgia Constitution against
Peavy, the Defendants argue that the following issues merit interlocutory appeal: (1)
whether Peavy’s ban of the Plaintiff from the Law Enforcement Center (“LEC”) is
actionable in a First Amendment retaliation claim; (2) whether a comparator can be
used to establish pretext in a First Amendment retaliation claim; and (3) whether the
comparator used was an appropriate comparator. Doc. 66 at 7-8.
First, the Defendants argue that the LEC ban is not actionable in a First
Amendment retaliation claim. Id. at 7. The Defendants assert that “[the Plaintiff] did not
cite any legal authority to support a finding that a reasonable jury could find that the
LEC ban, which thereby relieved her of a job duty without affecting her wage-earning
capacity, would deter a person of ordinary firmness from engaging in protected speech.”
A plaintiff suffers an adverse action “if the defendant’s allegedly retaliatory
conduct would likely deter a person of ordinary firmness from the exercise of First
Amendment rights.” Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005). Further,
“the effect on freedom of speech may be small, but since there is no justification for
harassing people for exercising their constitutional rights it need not be great in order to
be actionable.” Id. (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)). The
Court found, in its Order on Motion for Reconsideration:
[T]here is a genuine issue of fact whether Sheriff Peavy’s
ban would deter a person of ordinary firmness from
exercising her First Amendment rights. The ban did not
simply create negative workplace consequences for Potter; it
also prevented Potter from performing part of her job
responsibilities. Therefore, a reasonable jury could find that
the ban would deter a person of ordinary firmness from
engaging in protected speech.
Doc. 62 at 4. Whether the LEC ban would deter a person of ordinary firmness is a
factual question, not a legal question. See Smith v. Mosley, 532 F.3d 1270, 1277 (11th
Cir. 2008) (“Whether the discipline ‘would likely deter’ presents an objective standard
and a factual inquiry.”). Accordingly, this question also “turns on whether there is a
genuine issue of fact or whether the district court properly applied settled law to the
facts or evidence of a particular case.” McFarlin, 381 F.3d at 1259. It is not appropriate
for interlocutory appeal.
Second, the Defendants argue that using comparators in a First Amendment
retaliation case presents a controlling question of law as to which there is substantial
ground for differences of opinion. Doc. 66 at 7. The Court’s Order on Motion for
Reconsideration (Doc. 62) poses this question, the Defendants argue, because “the
dispositive question deciding the fate of [the Plaintiff’s] First Amendment retaliation
claim against Van Peavy is whether his failure to ban EMT Jason White from the LEC
evidenced his discriminatory animus against Potter.” Id.
But the Defendants misstate the circumstances surrounding the comparator
issue. The question arose in the Court’s qualified immunity decision. See Doc. 62 at 25 (relating the Court’s previous conclusion that a fact issue existed as to whether Peavy
acted with improper motive, posing the comparator question as to qualified immunity,
and concluding that Peavy is not entitled to qualified immunity as a matter of summary
judgment). The Court’s qualified immunity decision is already before the Eleventh
Circuit. In contrast, with respect to retaliation, the Court found “sufficient circumstantial
evidence of Sheriff Peavy’s retaliatory motive to withstand summary judgment;”
specifically, the temporal proximity between the protected speech and the alleged
retaliatory action, in addition to the fact that Peavy banned the Plaintiff and not her
partner. Doc. 53 at 13. The Court declined to exercise supplemental jurisdiction over
the state law claims against Peavy because of the ruling that Peavy enjoyed qualified
immunity. Doc. 62 at 5. Upon the Court’s conclusion that Peavy was not entitled to
qualified immunity, however, the Court denied Peavy’s motion for summary judgment on
the First Amendment claim under the Georgia Constitution “for the same reasons the
Court concluded [the Plaintiff] sufficiently established a constitutional violation as to the
federal First Amendment claim.” Id. Accordingly, the comparator question was not “the
dispositive question deciding the fate” of the First Amendment claim under the Georgia
Constitution. Since the qualified immunity claim is already before the Eleventh Circuit,
the Court declines to certify this question for interlocutory appeal.
Third, the Defendants argue that whether the Court used an appropriate
comparator warrants interlocutory appeal. Doc. 66 at 8. The Plaintiff and her husband
“had a long history of provoking” their employer, while no evidence suggested that the
comparator had similar issues; therefore, the Defendants argue, the comparator and the
Plaintiff are “not similarly situated . . . in all relevant respects.” Id.
As noted above, however, the comparator question arose out of the Court’s
qualified immunity determination, and additional evidence informed the Court’s decision.
Further, the question of whether the Plaintiff and her colleague are similarly situated
again “turns on whether there is a genuine issue of fact or whether the district court
properly applied settled law to the facts or evidence of a particular case.” McFarlin, 381
F.3d at 1259. It is not a question an appellate court “can decide quickly and cleanly
without having to study the record.” Id. at 1258 (internal quotation marks and citation
omitted). Accordingly, the Court also declines to certify this question.
State Law Tortious Interference Claim Against Peavy
Finally, regarding the claim for tortious interference with business employment
relations against Peavy, the Defendants argue that an issue appropriate for interlocutory
appeal is whether the Court correctly found that the Defendants briefed summary
judgment on the wrong cause of action. Doc. 66 at 8. The Defendants argue that the
motion for summary judgment addressed the specific elements the Plaintiff needed to
prove to survive summary judgment, and because the Court declined to rule on the
issue, whether the Plaintiff met her burden is a controlling question of law as to which
there is substantial ground for difference of opinion. Id. at 8-9.
The Plaintiff’s complaint alleges “tortious interference with business employment
relations.” Doc. 35 at 18. The Defendants moved for summary judgment on the
Plaintiff’s claim against Peavy for “tortious interference with business relations.” Doc.
37-1 at 18. The Court initially declined to exercise supplemental jurisdiction over the
claim, but upon reconsideration finding that Peavy was not entitled to qualified
immunity, the Court addressed the claim. Doc. 62 at 5. The Court found that the
Plaintiff alleged a claim for tortious interference with employment relations, and while
tortious interference with business relations and tortious interference with employment
relations “have some overlap, they are not identical.” Id. at 6. The Court therefore
concluded that “[g]iven the [Defendants’] fairly brief discussion in support of its motion
for summary judgment on a tortious interference with business relations claim, the Court
does not feel it appropriate to rule on the merits of [the Plaintiff]’s claim for tortious
interference with her employment relations.” Id.
Although the heading in the Plaintiff’s complaint may have been ambiguous, in
her response to the motion for summary judgment the Plaintiff clearly indicated that she
alleged “tortious interference with employment.” See Doc. 48 at 27. In their reply brief,
the Defendants failed to acknowledge this discrepancy. See Doc. 50 at 9-10 (referring
again to the Plaintiff’s “intentional interference with business relations claim”). The
Defendants’ opportunity to flesh out and clarify the issue was in summary judgment
briefing, not on interlocutory appeal, and the Court also declines to certify this question.
A favorable ruling for the Defendants may “materially advance the ultimate
termination of the litigation.” 28 U.S.C. § 1292(b). However, the Court finds that the
questions posed by the Defendants do not “involve a controlling question of law as to
which there is substantial ground for difference of opinion.” 28 U.S.C. § 1292(b). These
are simply not the types of “rare exception” appropriate for interlocutory appeal.
For the reasons discussed above, the Defendants’ Motion for Interlocutory
Appeal (Doc. 66) is DENIED.
SO ORDERED, this 29th day of November, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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