POTTER v. DOOLY COUNTY GEORGIA, 5:14-cv-00315

Background

Plaintiff Lorie Potter sued Dooly County, the Estate of Lucius Van Peavy, and Don Williford alleging Title VII race discrimination, § 1981 and § 1983 claims, a First Amendment retaliation/retaliation-under-Ga.-Const. claim, and tortious interference with employment relations.
District Court granted summary judgment or declined supplemental jurisdiction on several claims but allowed to proceed: Title VII claim against Dooly County; equal-protection/race claims against certain defendants; state First Amendment and tortious-interference claims against Peavy (after reconsideration); qualified-immunity denials for Williford and Peavy were appealed to the Eleventh Circuit.
Defendants Dooly County and Peavy moved for permission to file an interlocutory appeal under 28 U.S.C. § 1292(b) on six questions covering: Title VII prima facie and pretext issues; whether Peavy’s LEC ban was an actionable adverse action under the Georgia First Amendment; use and appropriateness of a comparator; and whether the court addressed the correct tortious-interference cause of action.
The court applied the § 1292(b) standard, emphasizing the Eleventh Circuit’s presumption against interlocutory appeals and that such appeals should present pure controlling legal questions suitable for quick appellate resolution.
The court concluded each contested question turned on factual disputes or application of settled law to facts (unsuitable for § 1292(b)) and denied permission to file the interlocutory appeal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Title VII — prima facie and pretext (failure to promote)	Potter established prima facie promotion-discrimination and raised sufficient evidence of pretext to survive summary judgment	Dooly County says Potter failed to show a genuine pretext dispute and failed to meet objective qualification element	Court: Questions are factbound (application of McDonnell Douglas); not certifiable under § 1292(b); motion denied
First Amendment (Ga. Const.) — LEC ban adverse action	Potter: ban prevented performance of duties and could deter a person of ordinary firmness; factual dispute exists	Peavy: ban merely relieved a duty without affecting wages and cannot deter protected speech	Court: Whether ban would deter an ordinary person is a factual inquiry; not suitable for interlocutory appeal; denied
First Amendment — comparator use and appropriateness	Potter relied on circumstantial evidence including temporal proximity and differential treatment (ban of Potter but not partner)	Peavy: comparator invalid; comparator lacked similar disciplinary history; comparator issue purportedly dispositive	Court: Comparator questions arose largely in qualified-immunity context (already on appeal) and are fact-intensive; not certifiable; denied
Tortious interference — cause-of-action briefing mismatch	Potter clarified she alleged tortious interference with employment relations in her response	Defendants: summary-judgment briefing addressed business-relations claim, not employment-relations; court should rule on merits	Court: Defendants should have clarified during summary-judgment briefing; issue is procedural/factual; not a controlling legal question for § 1292(b); denied

Key Cases Cited

McFarlin v. Conseco Servs., LLC, 381 F.3d 1251 (11th Cir. 2004) (interlocutory appeals under § 1292(b) are a rare exception and unsuited to factbound questions)
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (burden-shifting framework for discrimination cases)
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (U.S. 1981) (defendant’s burden to proffer legitimate nondiscriminatory reason)
Bennett v. Hendrix, 423 F.3d 1247 (11th Cir. 2005) (adverse-action standard: would likely deter a person of ordinary firmness)
Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913 (11th Cir. 1993) (pretext and fact-intensive issues generally unsuitable for summary disposition)
Rioux v. City of Atlanta, 520 F.3d 1269 (11th Cir. 2008) (standards for showing employer’s reasons are unworthy of credence)
Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997) (pretext evidence standard)
Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763 (11th Cir. 2005) (distinguishing subjective vs objective qualifications)
Smith v. Mosley, 532 F.3d 1270 (11th Cir. 2008) (whether discipline would likely deter is an objective factual inquiry)
Bart v. Telford, 677 F.2d 622 (7th Cir. 1982) (small effects on speech can still be actionable retaliation)
Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304 (11th Cir. 2012) (plaintiff’s burden to show pretext after employer’s nondiscriminatory explanation)
Denney v. City of Albany, 247 F.3d 1172 (11th Cir. 2001) (elements of prima facie failure-to-promote claim)