Clyde Anthony v. Georgia Department of Public Safety

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13561
____________________
CLYDE ANTHONY,
Plaintiff-Appellant,
versus
STATE OF GEORGIA, et al.,
Defendants,
GEORGIA DEPARTMENT OF PUBLIC SAFETY,
Defendant-Appellee.
____________________
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2 Opinion of the Court 21-13561
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-05303-SDG
____________________
Before BRANCH and GRANT, Circuit Judges, and HINKLE,∗ District
Judge.
BRANCH, Circuit Judge:
Clyde Anthony appeals the district court’s grant of summary
judgment to his former employer, the Georgia Department of
Public Safety (“Department”). In this civil appeal, Anthony argues
that the district court erred in concluding that he failed to make out
a prima facie case of Title VII race discrimination regarding (1) the
Department’s investigation of an incident stemming from his
alleged intoxication at work and (2) the Department’s failure to
promote him to corporal while he was on administrative leave.
Anthony also raises a separate evidentiary argument, alleging that
the district court erred in refusing to admit a document he alleges
is from the Equal Employment Opportunity Commission
(“EEOC”) because it lacked authenticity, was hearsay, and was
potentially an expert witness report with improper legal
conclusions. We conclude that the district court properly granted
∗ Honorable Robert L. Hinkle, United States District Judge for the Northern
District of Florida, sitting by designation.
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21-13561 Opinion of the Court 3
summary judgment on both claims, although we affirm the grant
of summary judgment on the investigation claim for different
reasons than those relied upon by the district court. Further, we
conclude the district court did not abuse its discretion in refusing
to admit the document allegedly from the EEOC. Accordingly, we
affirm the judgment of the district court.
I. Background
A. Facts 1
Clyde Anthony, a black male, is a former state trooper who
was employed by the Department as a member of the Georgia
State Patrol. In August 2017, Anthony held the rank of trooper first
class and was a member of Troop C. On August 5, 2017, Anthony
contacted several fellow troopers to secure a ride to work that
morning. He claimed that he needed a ride because his car had a
flat tire. However, one of Anthony’s superior officers, Assistant
Troop Commander Lieutenant T.J. Jackson, received a report that
Anthony needed transportation because he might have been
intoxicated and unable to drive to work. Upon further
investigation, Jackson was told that “several other people” had
heard that Anthony was possibly drunk.
1 At summary judgment, we recite the facts in the light most favorable to
Anthony. See Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1294
(11th Cir. 2013).
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Trooper First Class Colby Johnston was sent to pick
Anthony up. Johnston reported that there was an odor of alcohol
on Anthony. When they arrived at headquarters, Jackson
performed two alco-sensor tests on Anthony to determine whether
he was impaired. 2 These tests took place at approximately 12:40
pm. According to those tests, Anthony’s blood alcohol level was
.016 and .014, respectively. Because the results of the alco-sensor
tests and the odor established a reasonable suspicion of alcohol use,
approximately one and a half hours after the second alco-sensor
test, Anthony was given a breath test at a testing facility. According
to that test, Anthony’s blood alcohol level was .000, indicating no
presence of alcohol.
Following the testing, Anthony was taken back to his home,
where he called Troop C Commander Captain Nikki Renfroe.
Renfroe informed Anthony that he would be placed on
administrative leave pending an investigation. The investigation
was a troop-level one conducted by Renfroe. At the end of the
investigation, Renfroe recommended that Anthony remain on
administrative leave, that he be required to undergo a “fitness for
duty evaluation specific to alcohol dependency,” and that he
receive professional counseling sessions. Renfroe sent her
recommendation to Commanding Officer Major Tommy
2 The alco-sensor test is a preliminary breath test utilized out in the field to
determine if someone suspected of alcohol use needs to undergo a more
extensive breath test at a testing facility.
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Waldrop, who agreed with her recommendation and approved it
for implementation.3 While on administrative leave, Anthony
received full pay and benefits. Anthony’s administrative leave
lasted nearly six months.
As part of the investigation, Renfroe monitored Anthony’s
social media accounts while he was on administrative leave. At
some point during September 2017, Renfroe saw a video posted on
Anthony’s Facebook profile where he was marketing an at-home
breathalyzer device. Concerned that Anthony was marketing an
alcohol-related device and that his marketing of the device might
implicate the Department’s policy against secondary
employment, 4 Renfroe forwarded the video link to Waldrop, and
3 At the time of the incident, Waldrop was the Commanding Officer Major of
the Georgia State Patrol. He was appointed to that position by the Georgia
Commissioner of Public Safety. When asked about why he approved
Renfroe’s recommendation to keep Anthony on administrative leave and
require him to undergo a fitness for duty evaluation and counseling, Waldrop
responded, “Because my job is to support the captains to make their troops
run smoothly. And [Renfroe] conducted the investigation through her troop,
through her subordinates. And that was the information that she gave me.
My job is to support her in the information that she gives me.” While Waldrop
approved Renfroe’s recommendation regarding Anthony’s discipline, there is
no evidence he made the initial decision to place Anthony on administrative
leave or participated in the troop-level investigation into Anthony’s suspected
alcohol use.
4 The exact terms of the Department’s policy against secondary employment
are unclear from the record. As best as we can discern, the Department
typically allows employees to engage in secondary employment, pending
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the matter was referred to Internal Affairs for further investigation.
The investigation into Anthony’s Facebook post closed with no
disciplinary action taken against Anthony.
On November 16, 2017, during his administrative leave,
Anthony voluntarily applied for family medical leave, indicating he
was “under doctor’s care for stress.” Anthony’s request was
approved, and he was removed from administrative leave and
placed on family medical leave. Anthony’s doctor later cleared him
for work, and he was returned to administrative leave on
December 1, 2017, so that he could complete the imposed fitness
for duty evaluation and attend counseling. Anthony later
completed the counseling and evaluation, and he returned to duty
on February 1, 2018. Anthony was not demoted, and he received
approval. However, once employees are placed on administrative leave, they
are forbidden from participating in secondary employment opportunities
related to their roles as law enforcement officers (e.g., security guards).
Considering the Facebook post appeared to show Anthony marketing
a breathalyzer device, which is commonly used by law enforcement, Renfroe’s
concern seemed to be that Anthony’s involvement with selling the device
might be police-adjacent employment that violated the Department’s policy.
Anthony understood the policy and was adamant he did not hold a second job
while on administrative leave, and he testified at his deposition that he did not
seek approval before marketing the device because “[i]t’s not a job. . . . I didn’t
interview. I didn’t turn in any Social Security numbers, and it’s not
guaranteed.”
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no change in pay as a result of the investigations into the August 5,
2017 alcohol incident and the September 18, 2017 Facebook post. 5
Anthony was deposed during the lawsuit’s discovery phase.
As part of his testimony, Anthony identified Corporal John
McMillan, a white male and member of Troop D, as a comparator
who was treated more favorably than Anthony. McMillan’s
situation is as follows. On September 11, 2015, several fellow
officers detected an odor of alcohol on McMillan when he showed
up at the scene of a crash. McMillan registered a .019 blood alcohol
level on an alco-sensor test, and he admitted he had consumed
alcohol while on duty. McMillan was placed on administrative
leave with pay, which lasted for approximately three months.
Troop D Commander Captain Dennis Dixon conducted the
investigation into McMillan’s suspected alcohol use. Following his
investigation, Dixon recommended that McMillan be demoted
from corporal to dispatcher, a civilian position, with a
corresponding drop in salary. 6
5 The concurrence incorrectly asserts that Anthony “ultimately was
exonerated.” While Anthony was ultimately reinstated and never received a
reduction in pay, he was required to undergo a “fitness for duty evaluation
specific to alcohol dependency” and receive professional counseling sessions.
Because these requirements were conditions of his reinstatement, it is
incorrect to assert that he “ultimately was exonerated.”
6 As the commanding officer of the Georgia State Patrol, Waldrop approved
Dixon’s recommendation for McMillan’s ultimate discipline. But, like with
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At some point during Anthony’s administrative leave, one
of his supervisors, Corporal Chad Harris, instructed Anthony “not
to have any involvement with any Departmental matters” while he
was on administrative leave. Anthony was interested in applying
for a promotion to corporal, but because of this comment, and
without seeking any clarification, Anthony opted not to take the
corporal exam required to receive the promotion.7
B. Procedural History
On March 9, 2020, Anthony filed a second amended
complaint against his former employer, the Department, alleging
that it discriminated against him because of his race in violation of
Title VII. He alleged that he was placed on administrative leave
from August 5, 2017, through January 29, 2018, following an
investigation into his violation of the substance abuse policy and
that white employees who “violate[d] the substance abuse policy
were not placed on administrative leave of this duration.” He
alleged that the duration of his administrative leave was
lengthened by (1) the investigation into his Facebook post that was
eventually “swept under the rug,” (2) his “medical treatment for
stress caused by [the Department] placing him on administrative
leave,” and (3) the Department’s requirement that he undergo a
Anthony, there is no evidence Waldrop participated in the troop-level
investigation into McMillan, which was conducted by Dixon.
7 There was no regulation in place that precluded Anthony from taking the
corporal exam while on administrative leave.
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fitness for duty evaluation and counseling. Anthony also alleged
that black “employees are discriminated [against] on the basis of
race in regards to promotions,” and that he was denied a
promotion to corporal because of his race.
Following discovery, the Department moved for summary
judgment, arguing that Anthony could not make a prima facie case
of discrimination related to the investigation. Specifically, it argued
that the period of time an employee is on administrative leave is
dependent on a “number of factors” and that there is “no one-size-
fits-all approach.” The Department pointed to Anthony’s medical
leave and the investigation into the Facebook post as reasons his
administrative leave was lengthened. It argued it had a legitimate,
nondiscriminatory reason for placing Anthony on administrative
leave, as it had reasonable suspicion to believe that he reported for
duty with alcohol in his system. It also contended that Anthony
was unable to identify any similarly situated white employees,
arguing that McMillan was not a proper comparator because he
was demoted, while Anthony was not. The Department also
asserted that Anthony could not make a prima facie case based on
the Department’s failure to promote him because he failed to take
the corporal exam while on administrative leave, which is a
prerequisite to being promoted to corporal.
Anthony responded to the Department’s motion for
summary judgment. In regard to the investigation claim, Anthony
argued that McMillan was similarly situated to him because both
were employed as state troopers and both were investigated for
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reporting to work under the influence of alcohol. He also
emphasized that “[t]he discrimination lies in the manner that the
two investigations were handled differently.” And for the failure-
to-promote claim, Anthony contended that he was denied access
to a promotion because Corporal Chad Harris, a supervisor,
instructed Anthony “not to have any involvement with any
Departmental matters” while he was on administrative leave.
Thus, he argued he had “no reason to defy his supervisor by
investigating if he was able to take the exam during” his
administrative leave.
In support of his arguments, Anthony attached an excerpt
he claimed was from his EEOC file. This document was titled
“Clyde Anthony v. Georgia Department of Public Safety,” and it
offered a conclusion that race was a significant factor in
determining when a trooper would be promoted to supervisor by
the Department, a “fact” the document asserted was “corroborated
by . . . data analytics.” The document did not list an author or any
other identifiers.
The Department replied to Anthony’s response. It argued
once again that Anthony failed to establish a prima facie case of
discrimination related to its alcohol investigation of him and that
McMillan was not a proper comparator because he “held a different
rank, reported to different supervisors, admitted to having alcohol
in his system, and faced much more severe repercussions.” It also
argued that Anthony failed to establish a prima facie case on his
failure-to-promote claim because there was no rule precluding him
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from taking the Corporal Exam while on administrative leave.
Finally, the Department argued that the document allegedly from
the EEOC was inadmissible because it (1) was hearsay, (2) was
unauthenticated, (3) sought to introduce improper expert
testimony without a qualified expert, and (4) improperly reached
the ultimate issue that the Department’s promotional practices
were based on race.
In a report and recommendation (“R&R”), the magistrate
judge recommended that the Department’s motion for summary
judgment be granted. For the claim related to the alcohol
investigation, the magistrate judge determined that Anthony did
not establish a prima facie case of discrimination based on race
because, while McMillan was similarly situated to Anthony, the
Department did not treat McMillan more favorably, as McMillan
was demoted and Anthony was not. For the failure-to-promote
claim, the magistrate judge determined that Anthony did not
establish a prima facie case because he did not offer any evidence
that Corporal Harris’s instruction was based on race. Finally, the
magistrate judge declined to consider the alleged EEOC document,
pursuant to Federal Rule of Civil Procedure 56(c)(2), because it was
unauthenticated, contained improper legal conclusions, and failed
to show that the unidentified author was qualified as an expert.
Anthony objected to the R&R on three grounds. First,
Anthony argued that the magistrate judge incorrectly concluded
that McMillan was not treated more favorably. Second, Anthony
argued that Corporal Harris’s instruction denied him the
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opportunity of taking the corporal exam, an opportunity provided
to white employees. Finally, Anthony argued that the magistrate
judge improperly failed to consider unauthenticated portions of the
alleged EEOC document related to Anthony’s claims.
The district court adopted the R&R in its entirety and
granted the motion for summary judgment. In its de novo review
of the issues to which Anthony objected, the district court
concluded Anthony could not establish a prima facie case of race
discrimination based on his alcohol investigation claim, as Anthony
was similarly situated to McMillan but not treated less favorably
because McMillan was demoted and his salary was reduced
following his administrative leave, while Anthony was not
demoted and his salary was not reduced. The district court also
concluded that Anthony could not make a prima facie case on his
failure-to-promote claim, as he failed to show he was “due
consideration for the corporal position” because he did not take the
exam and he presented no evidence to show that Corporal Harris
gave him incorrect information because of his race. Finally, the
district court concluded that the magistrate judge properly
declined to consider the alleged EEOC document because Anthony
did not authenticate it and failed to explain why it would be
admissible despite containing hearsay, legal opinions, and expert
conclusions.
Following the entry of a final judgment, Anthony timely
appealed.
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II. Discussion
A. Whether the district court erred in granting summary
judgment to the Department as to Anthony’s Title VII
discrimination claims
Title VII of the Civil Rights Act of 1964 makes it illegal for
employers
to fail to refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions,
or privileges or employment, because of such
individual’s race . . . .
42 U.S.C. § 2000e-2(a)(1). Anthony contends the Department
violated Title VII and racially discriminated against him in (1) the
Department’s investigation of his alleged alcohol use during work
hours and (2) the Department’s failure to promote Anthony to
corporal while he was on administrative leave. Anthony contends
that the district court erred in granting summary judgment to the
Department as to each of these issues.
This Court reviews de novo the district court’s grant of
summary judgment. Ave. CLO Fund, Ltd. v. Bank of Am., N.A.,
723 F.3d 1287, 1293 (11th Cir. 2013). Summary judgment is
appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In determining whether the
movant has met this burden, courts must view the evidence in the
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light most favorable to the non-movant. Ave. CLO Fund, Ltd., 723
F.3d at 1294. Nonetheless, “unsubstantiated assertions alone are
not enough to withstand a motion for summary judgment.”
Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987).
1. The Department’s investigation into Anthony
Anthony argues that he and McMillan were similarly
situated and that he was discriminated against on the basis of race
when he was treated differently than McMillan during their
respective investigations. Specifically, Anthony argues that he was
discriminated against because McMillan’s administrative leave was
shorter than Anthony’s and because McMillan was not required to
undergo a fitness for duty exam or substance abuse counseling.
In an attempt to avoid the issue he faced below, where his
claim was unsuccessful because the district court concluded his
discipline was actually more favorable than McMillan’s, Anthony
on appeal attempts to impose artificial divisions on his
discrimination claim. As he makes clear in his initial brief, Anthony
argues he was similarly situated to McMillan and is asserting
alleged discrimination for the “investigation stage—the only stage
that [he] is contesting as discriminatory in this case.” While we
need not decide whether it is legally permissible to divide the
“similarly situated” framework into distinct stages of an employer’s
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investigatory process,8 because Anthony loses even if we do so, in
accordance with his argument, we need only evaluate whether
Anthony was similarly situated to and treated differently from
McMillan in the so-called “investigation stage.”
Under Title VII, a claimant may show discrimination
through circumstantial evidence by satisfying the burden-shifting
framework established by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Lewis v. City of
Union City, 918 F.3d 1213, 1220, 1231 (11th Cir. 2019) (en banc).
Under that framework, the plaintiff bears the initial burden of
8 We note that Anthony’s desire to implement divisions into the “similarly
situated” framework seemingly contradicts the very purpose behind the
comparator analysis. As we have stated, “discrimination is a comparative
concept—it requires an assessment of whether ‘like’ (or instead different)
people or things are being treated ‘differently.’” Lewis v. City of Union City,
918 F.3d 1213, 1223 (11th Cir. 2019) (en banc). In the typical Title VII
discrimination scenario, a plaintiff looks at the entirety of an investigation and
disciplinary process and alleges disparate treatment by pointing to every
aspect in which they were treated differently in comparison to a “similarly
situated” individual. But here, because Anthony’s chosen comparator
McMillan was treated more favorably than Anthony at the end of their
respective alcohol investigations, Anthony desires to fragment the “similarly
situated” framework into divisions and argues that the final discipline is wholly
irrelevant to his discrimination claim. In doing so, he is asking us to ignore
the positive ultimate outcome he received and focus solely on the length of
his and McMillan’s investigations, the only part of the process in which
Anthony was treated differently in a negative way. Thus, Anthony does not
seek for us to evaluate his discrimination claim through all differences in
comparison to McMillan, as Lewis suggests, but instead asks us to pick and
choose.
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establishing a prima facie case of racial discrimination by showing,
among other things, that his employer treated similarly situated
employees outside his class more favorably. Id. at 1220–21.
To prove that an employer treated a similarly situated
individual outside the employee’s protected class more favorably,
the employee must show that he and his proffered comparator
were similarly situated in “all material respects.” Id. at 1224.
Generally, a “similarly situated” comparator is an employee who
“engaged in the same basic conduct (or misconduct) as the
plaintiff,” was “subject to the same employment policy, guideline,
or rule,” had the “same supervisor as the plaintiff,” and “share[d]
the plaintiff’s employment or disciplinary history.” Id. at 1227–28.
Ultimately, “a plaintiff and h[is] comparators must be sufficiently
similar, in an objective sense, that they ‘cannot reasonably be
distinguished.’” Id. at 1228 (quoting Young v. United Parcel Serv.,
Inc., 575 U.S. 206, 231 (2015)).
Here, the district court did not err in finding that Anthony
did not establish a prima facie case for race discrimination under
the McDonnell Douglas framework. However, we disagree with
the district court’s finding that McMillan, the comparator, was
similarly situated to Anthony at the investigation stage.
The only similarities between Anthony and McMillan are
that they both were state troopers and they both were investigated
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for showing up to work intoxicated.9 However, the similarities
end there. First, McMillan and Anthony held different ranks at the
time of their respective incidents. Second, McMillan admitted to
drinking and, thus, was not subject to any further testing. Third,
Anthony points to no evidence that McMillan was suspected of
violating other Department policies, while Anthony was suspected
of and investigated for his alleged violation of the Department’s
secondary employment policy. Fourth, Anthony voluntarily took
family medical leave during his administrative leave, thus
extending his administrative leave duration. Finally, their
investigations were conducted by different supervisors—
McMillan’s investigation was conducted by Troop D Captain
Commander Dixon while Anthony’s was conducted by Troop C
Commander Captain Renfroe.10 Anthony presents no evidence
that McMillan, a member of Troop D, was supervised by Captain
Renfroe, the Troop C supervisor who conducted Anthony’s
investigation. Nor does Anthony present any evidence that Major
Waldrop, the only person who supervised both Anthony and
McMillan, was involved in any way in either investigation. Thus,
9 McMillan, like Anthony, was investigated for being under the influence of
alcohol at work, and both were subjected to alco-sensor tests and placed on
administrative leave pending the outcome of an internal investigation.
10 Anthony was a member of Troop C, while McMillan was a member of
Troop D.
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McMillan was not “similarly situated” to Anthony in “all material
respects.” 11 See Lewis, 918 F.3d at 1227–28.
Anthony emphasizes that Waldrop implemented both
Anthony’s and McMillan’s final discipline, and, thus, argues that
Anthony had the same supervisor as McMillan. But Anthony does
not allege that he was similarly situated to McMillan in the
discipline stage. 12 Instead, Anthony argues that the alleged
discriminatory treatment took place during the investigation stage,
arguing that both he and McMillan “should have received the same
treatment during” their respective alcohol investigations. Since
Waldrop did not participate in either investigation,13 Anthony’s
reliance on Waldrop as the individual who ultimately implemented
both Anthony and McMillan’s discipline—which occurred at the
discipline stage that Anthony himself has argued must be carved
out from our analysis—is irrelevant to our analysis of whether
Anthony and McMillan were similarly situated during the
investigation stage.
11 Because Anthony has failed to identify a proper comparator, we need not
explore whether McMillan was treated more favorably.
12 In fact, Anthony does not challenge the district court’s finding that he was
actually treated more favorably than McMillan at the “discipline stage.”
13 We also note that while Waldrop did make the initial decision to place
McMillan on administrative leave, there is no evidence he made the initial
decision to place Anthony on administrative leave.
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Anthony failed to establish a prima facie case of Title VII
race discrimination.14 Thus, we affirm the district court’s grant of
summary judgment on the alcohol investigation issue in favor of
the Department. 15
2. The Department’s failure to promote Anthony
Anthony argues that he was denied an opportunity to sit for
the corporal exam because “his then supervisor told him not to get
involved with any [Department] matters while he was on
administrative leave.” Thus, he argues that a juror could find a
racially discriminatory intent from this instruction, which, he
argues, was misleading. 16
14 Anthony emphasized in his brief and at oral argument that he was unable
to continue his secondary employment as a security guard at a church while
he was on administrative leave, which Anthony estimated cost him $30,000 to
$40,000 in secondary income. This argument goes more towards the damages
Anthony allegedly suffered if he were able to prove his Title VII race
discrimination claim, but it does not change our analysis of his prima facie
case.
15 Although we are affirming on different grounds, “we may affirm the district
court as long as the judgment entered is correct on any legal ground regardless
of the grounds addressed, adopted or rejected by the district court.” Ochran
v. United States, 273 F.3d 1315, 1318 (11th Cir. 2001) (quotations omitted).
16 Harris instructed Anthony “not to have any involvement with any
Departmental matters” while he was on administrative leave. Notably, Harris
did not tell Anthony he could not sit for the corporal exam, and Anthony did
not ask Harris to clarify his instruction.
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To establish a prima facie case of race discrimination based
on a failure-to-promote theory, a plaintiff must show that he
(1) belonged to a protected class; (2) was qualified for and applied
for a position that the employer was seeking to fill, (3) was rejected
despite his qualifications, and (4) that “the position was filled with
an individual outside the protected class.” Vessels v. Atlanta Indep.
Sch. Sys., 408 F.3d 763, 768 (11th Cir. 2005). The burden of proving
“that the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff.” Springer v. Convergys
Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1347 (11th Cir. 2007).
Here, the district court did not err in finding that Anthony
did not establish a prima facie case of race discrimination due to the
Department’s failure to promote him, because he was not qualified
for the corporal position as he did not complete the written exam
required for promotion. See Vessels, 408 F.3d at 768. Anthony
contends that he did not take the exam because of Corporal
Harris’s comment. But he presents no evidence that this
instruction was made with discriminatory intent, so Anthony has
failed to establish that race discrimination was the real reason for
Corporal Harris’s directive. Because Anthony has failed to produce
any evidence to create a genuine issue of material fact on his
failure-to-promote claim for race discrimination, we affirm the
district court’s grant of summary judgment in favor of the
Department.
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B. Whether the district court abused its discretion in failing to
consider as evidence the document Anthony claims is from
the EEOC
Anthony argues the district court erred in refusing to admit
the document allegedly from the EEOC that he sought to
introduce in support of his failure-to-promote claim. Specifically,
he contends that the document need not be authenticated at the
summary judgment stage because it was capable of being
authenticated at trial and that the hearsay in the document is
admissible at summary judgment because the declarant is available
to testify at trial. In the alternative, even if the document was
inadmissible, Anthony argues that, at trial, he can testify that he
received the document from the EEOC.
This Court “review[s] a ruling on the admissibility of
evidence for an abuse of discretion.” Goldsmith v. Bagby Elevator
Co., 513 F.3d 1261, 1276 (11th Cir. 2008). A party may object to
the admissibility of evidence presented at the summary judgment
stage if the evidence cannot be presented “in a form that would be
admissible” at trial. Fed. R. Civ. P. 56(c)(2).
When an appellant fails to challenge properly on appeal one
of the grounds on which the district court based its judgment, he is
deemed to have abandoned any challenge of that ground. Sapuppo
v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).
Issues not raised in an initial brief are deemed forfeited and will not
be addressed absent extraordinary circumstances. United States v.
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22 Opinion of the Court 21-13561
Campbell, 26 F.4th 860, 873 (11th Cir.) (en banc), cert denied, 143
S. Ct. 95 (2022). Extraordinary circumstances include whether
(1) the issue involves a pure question of law and
refusal to consider it would result in a miscarriage of
justice; (2) the party lacked an opportunity to raise the
issue at the district court level; (3) the interest of
substantial justice is at stake; (4) the proper resolution
is beyond any doubt: or (5) the issue presents
significant questions of general impact or of great
public concern.
Id.Here, Anthony has forfeited any arguments as to the district
court’s findings that the purported EEOC document was
inadmissible because it contained ultimate legal conclusions and an
unsupported expert opinion because he did not challenge either of
these grounds in his opening brief, instead arguing only that the
document would not be subject to exclusion on the grounds of lack
of authentication and hearsay.
Further, no extraordinary circumstances apply to warrant
consideration, because a refusal to consider the issue would not
result in a miscarriage of justice, the issue is not one of substantial
justice, the proper resolution is not beyond any doubt, and the
issue does not present significant questions of general impact or of
great public concern. See Campbell, 26 F.4th at 873. Because
Anthony failed to challenge properly on appeal two of the grounds
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21-13561 Opinion of the Court 23
on which the district court based its judgment, he is deemed to
have abandoned any challenge on these grounds, and we affirm as
to this issue. See Sapuppo, 739 F.3d at 680.
III. Conclusion
Because Anthony failed to establish a prima facie case of race
discrimination on his alcohol investigation and failure-to-promote
claims, we affirm the district court’s grant of summary judgment.
And because Anthony failed to challenge two of the district court’s
grounds for refusing to admit the purported EEOC document, we
also affirm as to the evidentiary issue.
AFFIRMED.
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21-13561 HINKLE, J., Concurring 1
HINKLE, District Judge, Concurring:
I agree that the district court properly granted summary
judgment, but I get there by a different route.
The plaintiff Clyde Anthony, a state trooper, drank alcohol
on a Friday night, had a flat tire the next morning, and called other
troopers for a ride to work. This and other circumstances,
including social-media posts seen by another employee, caused an
assistant troop commander to believe—reasonably—that Mr.
Anthony might have been impaired. Initial tests showed a blood-
alcohol level of .014 or .016, below the .02 that is a firing offense
but more than a trooper should have in his system while working.
Mr. Anthony was placed on administrative leave with pay while an
investigation was conducted not just of his condition on this one
morning but of his use of alcohol more generally. Mr. Anthony
denied any wrongdoing and ultimately was exonerated. He
returned to his position.
Nothing about these circumstances suggests race had
anything to do with it. Mr. Anthony asserts, though, that a trooper
of a different race—in the jargon of employment-discrimination
cases, a “comparator”—was treated more favorably.
The alleged comparator, John McMillan, was also a state
trooper. He was at work on a different day with a blood-alcohol
level of .019. He, too, was placed on administrative leave and
investigated. He admitted drinking on the job and was demoted to
an unsworn position.
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2 HINKLE, J., Concurring 21-13561
Nothing about the different treatment of Mr. Anthony and
Mr. McMillan suggests race had anything to do with it. The
exonerated trooper—Mr. Anthony—kept his job. The guilty
trooper—Mr. McMillan—was demoted. The obvious reason for
the different treatment was that one was innocent, the other guilty.
To be sure, Mr. Anthony also complains that his
investigation took longer than Mr. McMillan’s. That seems
unsurprising; one might reasonably expect it to take longer to
investigate a contested charge than an admitted charge. Moreover,
Mr. Anthony sought medical leave during the investigation.
Because of the medical issues and alcohol use, he was reasonably
required to submit to a fitness-for-duty evaluation before his
return. The record includes no evidence that race had anything to
do with the medical leave or fitness-for-duty evaluation. On those
issues, Mr. McMillan is not a comparator—he was not required to
undergo a fitness-for-duty evaluation, but he did not have the same
medical issues and was not put back to work as a trooper.
The bottom line: the district court properly granted
summary judgment because nothing in the record would support
a finding that race was a reason for Mr. Anthony’s treatment. I
would affirm on that basis. The majority is correct that Mr.
McMillan is not a proper comparator on the length-of-investigation
and fitness-for-duty issues. But on the question whether Mr.
Anthony could properly be placed on leave and investigated, Mr.
McMillan is very much a proper comparator. Mr. Anthony loses on
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21-13561 HINKLE, J., Concurring 3
this issue not because Mr. McMillan was different, but because he
was the same—and his treatment was the same.
The difference in this analysis and the majority’s makes no
difference in the outcome. But on different facts, the different
analysis would produce different results. Had Mr. Anthony been
demoted while Mr. McMillan kept his job, this case would properly
go to trial. Had Mr. Anthony been placed on leave while Mr.
McMillan was allowed to keep working, this case would properly
go to trial. Much ink can be—indeed has been—spilled over how
to identify a proper comparator, but in the end, the most important
question is simply this: on any given set of facts, could a jury
reasonably conclude that race was a motivating factor in the
decision at issue? Here, the answer is no.