Julia McCreight v. Auburn Bank
Citation117 F.4th 1322
Date Filed2024-09-19
Docket22-12577
Cited61 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12577
____________________
JULIA MCCREIGHT,
REBECCA WESTER,
Plaintiļ¬s-Appellants,
versus
AUBURNBANK,
AUBURN NATIONAL BANCORPORATION, INC.,
MICHAEL KING,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
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2 Opinion of the Court 22-12577
D.C. Docket No. 3:19-cv-00865-RAH-SMD
____________________
Before GRANT, ABUDU, and HULL, Circuit Judges.
GRANT, Circuit Judge:
Title VII prohibits employers from intentionally
discriminating against their employees based on ārace, color,
religion, sex, or national origin.ā 42 U.S.C. Ā§ 2000e-2(a)(1). That
seems simple enough. But it has not turned out to be; employment
discrimination law has grown into a tangle of doctrines, tests, and
claim types. We are doing our best to clear a path. In recent cases
we have explained that the McDonnell Douglas order of proof and
what we have called the āconvincing mosaicā approach are just two
ways to meet the same summary judgment standard: enough
evidence for a reasonable jury to conclude that illegal
discrimination occurred. See Tynes v. Florida Depāt of Juv. Just., 88
F.4th 939, 943ā47 (11th Cir. 2023); Ossmann v. Meredith Corp.,82 F.4th 1007, 1020
(11th Cir. 2023); Yelling v. St. Vincentās Health Sys.,
82 F.4th 1329, 1342 (11th Cir. 2023).
Here we clear up two other strands of our case law: sex-plus
claims and mixed-motive theories of liability. These terms mean
diļ¬erent things. A sex-plus claim is based on one kind of
discriminationāsex discriminationātargeting one subclass of a
sex. Black women and mothers are subcategories of women that
have been recognized. So too for older women, the relevant
category here.
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22-12577 Opinion of the Court 3
Mixed-motive discrimination, on the other hand, allows for
liability when an employment decision motivated by a legitimate
reasonāusually poor work performanceāis also infected by an
illegitimate reasonāillegal discrimination. So mixed-motive is not
a theory that more than one illegal motive was at play. Nor is it the
same thing as a āsex-plusā claim. Indeed, because mixed-motive
discrimination is a theory of liability, not a type of claim, it need
not be alleged in the complaint to survive; raising a mixed-motive
argument by summary judgment oļ¬ers notice to defendants about
what to defend, and to courts about what to decide.
Plaintiļ¬ Julia McCreight raised a sex-plus discrimination
claim, but she did not oļ¬er enough evidence for a reasonable jury
to conclude that her boss ļ¬red her because of her sex. We therefore
aļ¬rm summary judgment for the defendants on the sex
discrimination claim. McCreight and co-plaintiļ¬ Rebecca Westerās
age discrimination claims fail for the same reasonāneither woman
oļ¬ered enough evidence for a reasonable jury to conclude that she
was ļ¬red because of her age. And because both women failed to
oļ¬er evidence, rather than speculation, that their supervisors knew
about their age or sex discrimination complaints, their retaliation
claims also fail.
I.
AuburnBank is a loan originator. Most of the time, it acts as
a āseller servicerā for Fannie Mae, meaning that it sells loans to
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4 Opinion of the Court 22-12577
Fannie Mae while maintaining the servicing rights. 1 AuburnBank
prefers acting as a seller servicer because that role in the market
carries the lowest risk. A smaller part of AuburnBankās business is
originating loans that it sells to other secondary market investors.
For these loans, AuburnBank sells both the loan and its servicing
rights to a third party. Finally, AuburnBank originates a certain
number of in-house loans, retaining both the loan and its servicing
rights.
Fannie Mae requires that loan applicants meet certain
qualiļ¬cations. To ensure that these conditions are met,
AuburnBank requires a number of steps, starting with
prequaliļ¬cation. This duty falls to mortgage loan originators, who
prequalify applicants based on unveriļ¬ed information that would-
be borrowers provide. If everything looks appropriate, the bank
will send a conļ¬rmation letter informing the applicant that she is
prequaliļ¬ed. But mortgage loan originators are not authorized to
formally approve any applicants for a loanāthat responsibility falls
to underwriters, who independently vet applicants. If an
underwriter concludes that a prospective borrower is unqualiļ¬ed
for a Fannie Mae loan, the bank has two choices: it can deny the
applicant entirely or approve a much riskier in-house loan.
Regardless of which type of loan the bank approves, would-be
1 As a loan originator, AuburnBank assesses and approves mortgage loan ap-
plications, and then will sell those loans to other investors in what is known as
the secondary market. Fannie Mae is a secondary market purchaser, meaning
that it buys loans already approved by lenders like AuburnBank.
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22-12577 Opinion of the Court 5
borrowers need to satisfy other conditions before closing. This
way, the bank can pull the loan if the applicantās ļ¬nancial picture
changes right before the closing date.
Each part of this process can spell disaster for a bankās
bottom line if not handled properly: loans approved for borrowers
who fail to meet the standards of secondary market purchasers like
Fannie Mae are dramatically riskier. AuburnBankās disciplinary
policy reļ¬ected the reality that some mistakes are worse than
others. It generally provided for termination after three formal
warnings, but immediate termination was possible if an employee
committed a serious oļ¬ense.
McCreight and Wester were ļ¬red after committing serious
errors in the loan-approval process. McCreight worked as a
mortgage loan originator, and Wester as a loan closer. Both
women had been employees of AuburnBank for more than twenty
years and were over sixty years old when they were ļ¬red. They
were ultimately ļ¬red by Michael King, who had been hired as the
mortgage department manager to grow and revitalize the
department.
As a mortgage loan originator, McCreightās job duties
included originating loans for the bank and prequalifying
applicants based on the (unveriļ¬ed) information they provided.
But in the incident that precipitated her ļ¬ring, instead of
prequalifying a prospective borrower, McCreight sent him a letter
announcing that his loan had been approved. The problem was
that the borrower did not really qualify for the loan, which was
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6 Opinion of the Court 22-12577
denied by the underwriter who later reviewed it. But because of
McCreightās approval letter, AuburnBank was still contractually
bound to issue the loan, which it could not sell to Fannie Mae. This
error left the bank with a much riskier loan, exposing it to a risk of
default.
The confusion arose because McCreight had used an
outdated standard letter, one that a supervisor had instructed her
to stop using. McCreight claims she was never told about the new
version, but she received an email discussing the new letter and
attaching a copy of it. McCreight also claims that her supervisor
gave her permission to continue using the old letter, which the
supervisor denies.
This was not the ļ¬rst time McCreight had committed a
serious error. For one, she created a potential conļ¬ict of interest
by being inappropriately involved in one of her family memberās
loans. She also attempted to change an already locked-in interest
rate for a diļ¬erent borrower; had she succeeded, the loan would
have been unsellable to Fannie Mae. Her unauthorized approval
of the unqualiļ¬ed borrower was the āļ¬nal strawā for King.
Like McCreight, Wester was ļ¬red after the last of a series of
errors. For her, it was failing to verify the employment of a loan
applicant within ten days before closing. Wester was out of the
oļ¬ce for a medical procedure the Friday before the loan closed.
Though she could have performed the employment check earlier
in the week, she failed to do so. After closing was complete, she
learned that the borrower no longer had a job. But because the
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22-12577 Opinion of the Court 7
loan had already closed, the bank was stuck with it. Wester says
that she had asked colleagues to take care of it while she was out,
but she oļ¬ers no explanation for not doing it herself before her
procedure. And this was not the ļ¬rst time. In fact, she had already
been placed on a ninety-day probation for failing to complete her
work promptly. This failure to verify employment was the
breaking point for the bank, and with Kingās approval Wester was
ļ¬red by one of her supervisors.
McCreight and Wester see their terminations diļ¬erently.
Both contend that AuburnBank and King ļ¬red them because they
were older women and in retaliation for their complaints to human
resources. King, they point out, terminated four women over the
age of forty, transferred two women, hired and promoted one
woman under forty, and hired ļ¬ve menāall within two years.
Meanwhile, no men were ļ¬red or transferred. And according to
McCreight, King āsaid he had come to clean houseā and wanted to
āhire younger MLOsā; he once added that McCreight had ābeen
here forever.ā
McCreight complained to Laura Carrington, Vice President
of Human Resources, claiming that King was spreading false
rumors that she sued the bank, and decrying what she saw as his
negative treatment of older women. She says she also made similar
complaints to AuburnBankās president and vice president, but they
dispute that contention. Wester also informally complained to
Carrington twice about the hostile work environment in the
mortgage department. For her part, Carrington says that she spoke
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8 Opinion of the Court 22-12577
with King, but only about McCreightās complaints about him
spreading rumors; Carrington says she did not share McCreightās
complaints of discrimination, and she denies sharing any of
Westerās complaints with King.
McCreight and Wester sued, raising a wide range of state
and federal claims: sex-plus-age discrimination under Title VII; age
discrimination in violation of the Age Discrimination in
Employment Act and the Alabama Age Discrimination in
Employment Act; retaliation under both Title VII and the
ADEA/AADEA; hostile work environment under Title VII and the
ADEA/AADEA; and a variety of state tort claims including false
light invasion of privacy and negligent retention/supervision. The
district court granted summary judgment for AuburnBank and
King on all counts. McCreight and Wester now appeal only their
ADEA and AADEA discrimination claims, their retaliation claims,
and McCreightās Title VII sex-plus-age discrimination claim.
II.
We review de novo a district courtās grant of summary
judgment, āviewing all evidence and drawing all reasonable factual
inferences in favor of the nonmoving party.ā Strickland v. Norfolk S.
Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012). Summary judgment is
appropriate when a movant shows that there is āno genuine dispute
as to any material fact and the movant is entitled to judgment as a
matter of law.ā Fed. R. Civ. P. 56(a). āA genuine issue of material
fact exists when the evidence is such that a reasonable jury could
return a verdict for the non-moving party.ā Quiī v. Thomas Cnty.
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22-12577 Opinion of the Court 9
Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016) (alteration adopted
and quotation omitted).
III.
We begin by addressing McCreightās sex discrimination
claim. McCreight says that because she has articulated a sex-plus
claim, it should be analyzed under a āmixed-motiveā theory. This
is incorrect. To start, a sex-plus claim is not, as McCreight seems
to think, a claim based on āmore than one type of discrimination
causing the adverse action.ā It is a claim based on one kind of
discriminationāsex discriminationāwithin a particular subgroup
of people.
Whatās more, McCreight misunderstands the nature of a
mixed-motive theory, which allows for Title VII liability when an
adverse employment action is motivated by some combination of
legitimate and illegitimate reasons. See 42 U.S.C. Ā§ 2000e-2(m). A
mixed-motive theory is not another way of referring to a sex-plus
claim or a theory that more than one illegal motive was at play. In
short, sex-plus-age is a type of employment discrimination claim a
plaintiļ¬ can bring, and mixed-motive is a theory of causation that
a plaintiļ¬ can rely on to support that claim.
McCreight is correct, however, that a district court should
not dismiss a mixed-motive theory as a failure of a complaintās
pleading. Because mixed-motive discrimination is a theory of
liability, rather than a type of claim, it need not be alleged in the
complaint to survive. But that does not revive her claim. She did
not argue a mixed-motive theory at all at the district court levelā
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10 Opinion of the Court 22-12577
not at summary judgment and not at any time. We therefore
aļ¬rm the grant of summary judgment against McCreight on her
sex discrimination claim because she did not raise a mixed-motive
theory, and she did not adequately support her single-motive
theory.
A.
Title VII, as we have said, prohibits employment
discrimination based on a variety of protected characteristics. 42
U.S.C. Ā§ 2000e-2(a)(1). Here, the relevant category is sex. An
archetypal way to prove sex discrimination under Title VII is to
show an employer treating an employee of one sex diļ¬erently than
employees of the other sex.
Also cognizable under Title VII are āsex-plusā discrimination
claims. Jeļ¬eries v. Harris Cnty. Cmty. Action Assān, 615 F.2d 1025, 1033
(5th Cir. 1980). 2 In these cases, the employer does not discriminate
against all women (or men) but rather treats a subgroup of women
(or men) diļ¬erently. Id. at 1033ā34. The āplusā refers to nonsex
factors that create the subgroup in which the sex discrimination
occurs. Singling out only one subgroup of a sex for discriminatory
treatment thus does not insulate an employer from liability. Id. at
1034. Otherwise, an employer could āescape violations of Title VII
2 Decisions of the United States Court of Appeals for the Fifth Circuit āas that
court existed on September 30, 1981, handed down by that court prior to the
close of business on that dateā are binding precedent in this Circuit. Bonner v.
City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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22-12577 Opinion of the Court 11
by adding nonsex factors in creating discriminatory policies.ā
Harper v. Thiokol Chem. Corp., 619 F.2d 489, 492 (5th Cir. 1980). Sex
discrimination, in short, does not require that an employer
discriminate against everyone of a particular sexāTitle VII comes
into play even when only a subgroup of employees is treated
diļ¬erently based on their sex.
This conclusion is not a new one. We have said that
employers āmay not apply diļ¬erent standards of treatment to
women with young children, to married women, or to women
who are single and pregnant.ā Jeļ¬eries, 615 F.2d at 1034. The same
goes for sex discrimination claims when an employer treats black
female employees diļ¬erently from black male employees; those
claims too are cognizable under Title VII. Id. 3 All of these claims
allege sex discrimination within a particular subgroup, which is
deļ¬ned by the āplusā factors.
Sex-plus-age claims likewise have been recognized by this
Court. See Chambless v. Louisiana-Pac. Corp., 481 F.3d 1345, 1348
(11th Cir. 2007). In a sex-plus-age case, the basis for the alleged
discrimination is sex; the age factorās work is in deļ¬ning the
subgroup in which the alleged sex discrimination occurred.4
3 Jefferies held that an employer violated Title VII by discriminating against
black womenāthe fact that the employer did not discriminate against black
males or white females was irrelevant. 615 F.2d at 1034.
4 Some courts have approved sex-plus-age claims because they see them as
based on a negative sex-based stereotype. See, e.g., Frappied v. Aļ¬nity Gaming
Black Hawk, LLC, 966 F.3d 1038, 1048ā49 (10th Cir. 2020). But though such
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12 Opinion of the Court 22-12577
The bottom line is this: because sex-plus-age claims allege
disparate treatment on the basis of sex, they fall within Title VII.
And just like any other discrimination claim, sex-plus-age claims
can be supported through either a single- or mixed-motive theory,
which we discuss next.
B.
Title VII oļ¬ers plaintiļ¬s two theories of discrimination:
single-motive and mixed-motive. Under a single-motive theory, a
plaintiļ¬ āmust prove that the ātrue reasonā for an adverse action was
illegalā bias. Quiī, 814 F.3d at 1235, 1237. In other words, we ask
whether illegal discrimination was the but-for cause of the
employeeās ļ¬ring, with the protected trait having āa determinative
inļ¬uenceā in the employerās decision. Hazen Paper Co. v. Biīins, 507
U.S. 604, 610 (1993).
For a mixed-motive theory, on the other hand, the employee
contends that both legal and illegal reasons motivated her ļ¬ring.
Quiī, 814 F.3d at 1235, 1239. Under that theory the plaintiļ¬ argues
that a ādiscriminatory input,ā like sex bias, factored into an
employerās decision, even if other reasons justiļ¬ed it as well. Id. at
1241; see also Gross v. FBL Fin. Servs., Inc.,557 U.S. 167, 171
(2009);
Desert Palace, Inc. v. Costa, 539 U.S. 90, 93 (2003). So under a mixed-
motive theory, a plaintiļ¬ need only show that an illegal reason
stereotypes may be the reason an employer targets a particular group, they are
not the reason this discrimination is illegal. The fact that a group of people is
being treated diļ¬erently based on sex is the reason.
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played a part in the decisionānot that it had a dispositive role. See
Quiī, 814 F.3d at 1238, 1241.
Single-motive and mixed-motive are not, we should be clear,
distinct claim types. Id. at 1235 n.4. Instead, they oļ¬er alternative
theories of causation for proving discrimination under Title VII.
Id. And underlying both theories is the same summary judgment
standard: whether a plaintiļ¬ has provided suļ¬cient evidence for a
reasonable jury to infer intentional discrimination. See Tynes, 88
F.4th at 943ā47; Quiī, 814 F.3d at 1239ā40.
Both theories also oļ¬er the same potential remedies, which
include compensatory and punitive damages plus back pay and
injunctive relief. 42 U.S.C. Ā§ 1981a(a)(1). But there is one important
diļ¬erence: if a plaintiļ¬ prevails under a mixed-motive theory, an
employer can still avoid damages and certain equitable relief by
showing that it would have taken the same action even without the
illegal motivation. Quiī, 814 F.3d at 1242; 42 U.S.C. Ā§ 2000e-
5(g)(2)(B). This aļ¬rmative defense is known as the mixed-motive
or same-decision defense. Desert Palace, 539 U.S. at 94ā95; Quiī,
814 F.3d at 1242.
While the same-decision defense restricts the plaintiļ¬ās
remedies, it does not absolve the employer from liabilityā
declaratory and injunctive relief, as well as attorneyās fees, remain
available. Desert Palace, 539 U.S. at 94ā95; 42 U.S.C. Ā§ 2000e-
5(g)(2)(B). And if an employer fails to assert, and prove, a same-
decision defense, a plaintiļ¬ prevailing under a mixed-motive theory
is entitled to recover the same damages and relief as would be
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14 Opinion of the Court 22-12577
available under a single-motive theory. 42 U.S.C. Ā§Ā§ 2000e-2(a),
2000e-2(m), 1981a(a)(1). This statutory frameworkāthe single-
motive theory, the mixed-motive theory, and the same-decision
defenseāconfronts the reality that discrimination based on
protected characteristics is illegal whether the employee is top-
notch or not. It also evinces Congressās intention to penalize
employment discrimination whenever it occurs, without also tying
the hands of employers who need to eļ¬ectively manage their
businesses.
That both single- and mixed-motive theories of liability are
available does not mean a plaintiļ¬ is required to aļ¬rmatively plead
one or the other at the outset of the case. 5 The Federal Rules of
Civil Procedure impose pleading requirements for claims, not
theories of liability. Fed. R. Civ. P. 8(a); see Johnson v. City of Shelby,
574 U.S. 10, 11ā12 (2014). The single-or-mixed-motive question
illustrates why; discovery is often necessary for a plaintiļ¬ to know
which causation standard to pursue. Price Waterhouse v. Hopkins,
490 U.S. 228, 247 n.12 (1989), superseded on other grounds by statute,
42 U.S.C. Ā§Ā§ 2000e-2(m), 2000e-5(g)(2)(B). Perhaps an employee
will learn that, although discrimination played a role in her ļ¬ring,
it was not the only reason for it.
5 We also made clear that defendants need not plead the same-decision defense
as an affirmative defense. Pulliam v. Tallapoosa Cnty. Jail, 185 F.3d 1182, 1185
(11th Cir. 1999).
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22-12577 Opinion of the Court 15
That does not mean, however, that plaintiļ¬s can simply
allege facts and let the district court ļ¬gure things out from there.
We ārely on the parties to frame the issuesā by āadvancing the facts
and arguments entitling them to relief.ā United States v. Campbell,
26 F.4th 860, 872 (11th Cir. 2022) (en banc) (quotations omitted).
So a plaintiļ¬ wishing to āprevail on a particular theory of liabilityā
must āpresent that argument to the district court.ā Fils v. City of
Aventura, 647 F.3d 1272, 1284 (11th Cir. 2011).
But when? So long as the factual basis is properly alleged, an
employee can raise a mixed-motive theory of liability as late as
summary judgment. What is important is not when the theory is
raised, but whether the defendant has enough notice of it. To be
sure, a district court may reject new theories of liability when they
are raised alongside new factual allegations such that a change
would āprejudice the other party in maintaining a defense upon the
merits.ā 5 Charles Alan Wright & Arthur R. Miller, Federal Practice
& Procedure Ā§ 1219 (4th ed. 2023). But without such prejudice, a
theory of liability raised by a plaintiļ¬ cannot be rejected simply
because she failed to speciļ¬cally plead it in her complaint. See Palm
Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245,
1259ā60 (11th Cir. 2015).
This notice requirement accomplishes several purposes. For
one, it gives the employer notice about what it is defending against.
For another, it gives the district court an understanding of what it
needs to decide and based on what evidence. It would be
remarkably unfair to both district courts and defendantsāand
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16 Opinion of the Court 22-12577
wasteful on top of thatāto let plaintiļ¬s on appeal spring new
theories of liability that were not considered or defended against at
summary judgment. 6 This requirement also protects plaintiļ¬s
because maintaining a single-motive theory prevents employers
from limiting the available remedies with the same-decision
defense.
C.
We now apply these points to the case before us. McCreight
brings a sex-plus-age discrimination claim under Title VII. But she
says that because her claim alleges two motives, sex and age, that
also makes it an āintersectionalā claim, which means it is a mixed-
motive claim. And for mixed-motive claims, she says, our
evidentiary standard is lower, requiring only ābits and piecesā of
evidence that could lead one to conclude that she was ļ¬red because
of her age and sex.
Respectfully, that is not how this works. We start with
McCreightās incorrect assumption that a sex-plus claim is the same
thing as a mixed-motive claim. As we have explained, mixed-
motive is a theoryānot a claim. So McCreight is right that she did
6 To be sure, a mixed-motive theory of discrimination does not require an em-
ployee to affirmatively concede that there was a good and legal justification
for the adverse employment action; most employees, like all human beings,
may find it hard to believe that there was a good reason for their employer to
act against them. But the theory must be specifically raised, at least in the
alternative.
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22-12577 Opinion of the Court 17
not need to allege a mixed-motive theory in her complaint; all that
she was required to allege was that an adverse employment action
occurred based on some protected characteristic and the factual
bases for her claim. See Swierkiewicz v. Sorema N.A., 534 U.S. 506,
514 (2002). She could then raise a mixed-motive theory of liability
outside her complaint, so long as that theory was not based on new
factual allegations and was raised before the district court by
summary judgment.
The problem for McCreightās mixed-motive theory is that
she did not raise it before the district court. A sex-plus-age claim,
again, is a label for a sex discrimination claim targeting only a
subset of a protected class. Mixed-motive discrimination is a
completely diļ¬erent conceptāa legal theory for an adverse action
that had both legitimate and illegitimate motives. So a sex-plus-age
claim (just like any other sex discrimination claim) can be
supported with a single-motive or a mixed-motive theory.
It was up to McCreight to deļ¬ne the contours of her claimā
and she chose single-motive. Though she cited a mixed-motive
case, Quiī, that was not enough. See generally Quiī, 814 F.3d 1227.
McCreight never argued, even in the alternative, that a mix of
legitimate and illegitimate motives played a role in her ļ¬ring;
instead, she claimed that AuburnBank ļ¬red her because of her
status as an older woman, and that any other reason the bank
oļ¬ered was pretextual. That is a classic single-motive approach.
So why did she cite Quiī? Perhaps because, as the district
court suggested, she wrongly perceives the mixed-motive test as
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18 Opinion of the Court 22-12577
easier to prove. As we will reiterate below, that is not the case.
Mixed-motive theories of discrimination invoke a lessened
standard of causation, not a diminished standard of proof.
McCreight is correct that the McDonnell Douglas test has certain
requirements in this Circuit that can be hard to meet. Especially
comparator evidence. See Lewis v. City of Union City (Lewis II), 934
F.3d 1169, 1185 (11th Cir. 2019). But all Title VII claimsāsingle-
motive as well as mixed-motiveāare ultimately decided according
to the same Rule 56 summary judgment standard. And that
standard asks whether the employee has oļ¬ered enough
ācircumstantial evidence that creates a triable issue concerning the
employerās discriminatory intent.ā Tynes, 88 F.4th at 946 (quotation
omitted). āBits and piecesā of evidence, as McCreight puts it, are
not enough, no matter which theory the plaintiļ¬ travels under.
But bits and pieces are all she oļ¬ered. Returning to the
speciļ¬cs of McCreightās sex discrimination claim, she relies on
statements from other female employees alleging that King
mistreated women, as well as alleged comments from King about
hiring younger mortgage loan originators. She also points to older
male employees she says were treated more favorably than she
was. 7
7 McCreight also provided statistics about the male-to-female makeup among
mortgage loan originators before and after Kingās involvement. But these sta-
tistics are not enough because they reflect only a small portion of the entire
mortgage department that King oversaw. While there is some evidence that
King fired or transferred more older women than he did older men, that evi-
dence is likewise insufficient because we do not know the gender composition
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22-12577 Opinion of the Court 19
Missing from McCreightās evidence is any indication that sex
played a role in her termination. The examples she provides about
the treatment of older male employees do not suggest sex
discrimination against her. One male employee improperly closed
a loan such that it had to be converted to an in-house loanābut he,
unlike McCreight, was a relatively new hire and had not been
disciplined before (or after, as it turned out) for an unauthorized
approval of a loan. The next also made costly mistakesāand he,
like McCreight, was told to either resign or be terminated. And as
for the third, McCreightās argument that AuburnBank responded
more immediately to his complaints about age discrimination and
a hostile work environment is not evidence of sex discrimination
against her. See Yelling, 82 F.4th at 1343.
All that remains is McCreightās general evidence of sex
discriminationāthat is, Kingās comments about hiring younger
mortgage loan originators, and complaints by other female
employees alleging mistreatment by King. These cannot carry the
day. To be sure, general evidence of discriminatory animus can
create an inference that discrimination played a role in a particular
case. See Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d
1354, 1361(11th Cir. 1999); Smith v. Lockheed-Martin Corp.,644 F.3d 1321, 1328, 1341
(11th Cir. 2011). But presenting sparse examples
of an employerās animus toward a particular group is not enough
and size of the entire mortgage department. We therefore cannot rely on
these statistics as sufficient evidence of sex discrimination to deny summary
judgment.
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20 Opinion of the Court 22-12577
on its ownāa plaintiļ¬ also needs evidence connecting that animus
to the adverse employment action against her. See Rojas v. Florida,
285 F.3d 1339, 1342ā43 (11th Cir. 2002). Because McCreight has
failed to oļ¬er enough evidence for a reasonable jury to conclude
that she was discriminated against because of her sex, we aļ¬rm
the district courtās summary judgment order on her Title VII sex-
plus-age discrimination claim.
IV.
McCreight also brought an age discrimination claim under
the Age Discrimination in Employment Act, as did Wester.8 The
ADEA prohibits employment discrimination against individuals
who are at least forty years old. 29 U.S.C. Ā§Ā§ 623(a)(1), 631(a). To
establish a claim under the ADEA, āa plaintiļ¬ must prove that age
was the ābut-forā cause of the employerās adverse decision.ā Gross,
557 U.S. at 176. This standard aligns with the single-motive
framework under Title VII, which asks whether discrimination was
the outcome-determinative reason for the employment action. See
Quiī, 814 F.3d at 1235, 1237ā39; Sims v. MVM, Inc.,704 F.3d 1327
,
1331ā33 (11th Cir. 2013).
McCreight and Wester argue that they have provided
enough evidence to show that they were ļ¬red because of their age.
King and AuburnBank disagree; they also ask that we analyze the
8 McCreight and Wester also brought claims under the Alabama Age Discrim-
ination in Employment Act, which has the same standards as the ADEA. Rob-
inson v. Alabama Cent. Credit Union, 964 So. 2d 1225, 1228 (Ala. 2007).
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22-12577 Opinion of the Court 21
claims only under the McDonnell Douglas framework because
McCreight and Wester did not raise a āconvincing mosaicā
argument before the district court. This too (on top of ignoring
our recent precedent rejecting this argument) misunderstands the
way courts must approach employment discrimination litigation.
McDonnell Douglas and the āconvincing mosaic standardā are two
ways to approach the same question: whether the plaintiļ¬ has put
forward enough evidence for a reasonable jury to conclude that
illegal discrimination occurred. Here, however, neither McCreight
nor Wester did soāno matter how one looks at it.
A.
The district courtās task at summary judgment is to assess
the plaintiļ¬ās claims according to the ordinary summary judgment
standard. āThat legal standard applies no matter how an employee
presents her circumstantial evidence.ā Berry v. Crestwood Healthcare
LP, 84 F.4th 1300, 1311 (11th Cir. 2023). As we have explained, the
McDonnell Douglas framework and the convincing mosaic approach
are two paths to the same destinationāthe ordinary summary
judgment standard. Tynes, 88 F.4th at 943ā47. One approach is not
more forgiving than the other on the ļ¬nal question, which is
whether a reasonable jury could infer illegal discrimination. But
given the continuing confusion on this issue, we add a little more
explanation here.
In McDonnell Douglas, the Supreme Court āset out a burden
shifting framework designed to draw out the necessary evidence in
employment discrimination cases.ā Tynes, 88 F.4th at 944. A
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22 Opinion of the Court 22-12577
plaintiļ¬ proceeding under that framework bears an initial burden
of establishing a prima facie case of discrimination.9 Lewis v. City
of Union City (Lewis I), 918 F.3d 1213, 1220 (11th Cir. 2019) (en
banc). Once that initial burden is met, the employer must
articulate a legitimate, nondiscriminatory reason for its adverse
employment action, and then, ļ¬nally, the plaintiļ¬ must show that
the employerās reason is pretext for unlawful discrimination. Poer
v. Jeļ¬erson Cnty. Commān, 100 F.4th 1325, 1336 (11th Cir. 2024); Tynes,
88 F.4th at 944. This ļ¬nal question of pretext āmerges with the
plaintiļ¬ās ultimate burden of persuading the factļ¬nder that she has
been the victim of intentional discrimination.ā Lewis I, 918 F.3d at
1221 (alterations adopted and quotations omitted). In other words,
the pretext prong of McDonnell Douglas is just the ordinary
summary judgment standard. Tynes, 88 F.4th at 945.
The convincing mosaic approach isāin its entiretyāthe
summary judgment standard. That phrase āis a metaphor, not a
9 The term āprima facie case,ā though ordinarily meaning āenough evidence
for a plaintiff to prevail on a particular claim,ā carries a different meaning in
the McDonnell Douglas contextāāthe establishment of a legally mandatory, re-
buttable presumption.ā Tynes, 88 F.4th at 945 (quotation omitted). That pre-
sumption serves as āa sort of practical coercion that forces the defendant to
come forward with evidence explaining its actions,ā and it gives the defendant
employer āa better idea of what evidence needs to be rebutted.ā Id. (quotation
omitted). Once the defendant employer offers evidence of the reason for its
actions toward the plaintiff, the prima facie case ādrops out of the pictureā
because the district court now has āall the evidence it needs to decide whether
the defendant intentionally discriminated against the plaintiff.ā Id. (quotations
omitted).
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22-12577 Opinion of the Court 23
legal test and not a framework.ā Berry, 84 F.4th at 1311; see also
Poer, 100 F.4th at 1337; Ossmann,82 F.4th at 1020
. It is also a helpful
reminder that McDonnell Douglas is not the only game in townāa
particularly useful point for employees with signiļ¬cant evidence of
illegal discrimination who lack the comparator evidence often
required to set out a case under McDonnell Douglas. See Smith, 644
F.3d at 1328; Hamilton v. Southland Christian Sch., Inc.,680 F.3d 1316, 1320
(11th Cir. 2012); see also Lewis I,918 F.3d at 1220
& n.6.
Although we have tried to clarify that they are one and the
same, some still consider the convincing mosaic as something
diļ¬erent than the ordinary summary judgment standard. Perhaps
the fact that the phrase āconvincing mosaicā is more poetic than
your average legal term has contributed to that idea. But imagine
if, rather than āa convincing mosaic of circumstantial evidence that
would allow a jury to infer intentional discrimination,ā the court
had said āenough evidence to allow a jury to infer intentional
discrimination.ā Smith, 644 F.3d at 1328 (footnote and quotation
omitted). We suspect that no one would construe that latter phrase
as creating a new framework diļ¬erent from the ordinary summary
judgment standard. So to the extent the term āconvincing mosaicā
has become a distraction, we again reiterate that this āapproach to
analyzing the evidence treats an employment discrimination suit in
the same way we would treat any other caseājumping directly to
the ultimate question of liability and deciding whether the moving
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24 Opinion of the Court 22-12577
party is entitled to judgment at that stage of the case.ā Tynes, 88
F.4th at 947. 10
What follows is that a plaintiļ¬ need not speciļ¬cally use the
term āconvincing mosaicā in the trial court to contend on appeal
that she has oļ¬ered enough evidence to survive summary
judgment. Contrary to the partial dissentās view, we have never
imposed a āmagic wordsā requirement before, and we decline to
do so here. See Hull Partial Dissent at 6ā7. Our āgeneral rule that
issues must be raised in lower courts in order to be preservedā does
ānot demand the incantation of particular words; rather, it requires
that the lower court be fairly put on notice as to the substance of
the issue.ā See Nelson v. Adams USA, Inc., 529 U.S. 460, 469 (2000).
So long as a plaintiļ¬ argues that she has presented enough evidence
for a reasonable juror to infer intentional discrimination, she has
preserved that issue and put the court on notice of the relevant
standard. Regardless of the term usedāāpretext,ā āconvincing
mosaic,ā āsummary judgmentāāthe substance of the argument is
the same.
10 The Seventh Circuit, where this phrase originated, agrees. It has repeatedly
chastised litigants that the āāconvincing mosaicā is not a legal test of any kind.ā
Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764ā65 (7th Cir. 2016). The properā
and onlyālegal standard is āwhether there was evidence from which a rea-
sonable trier of fact could infer discrimination.ā Johnson v. Advoc. Health &
Hosps. Corp., 892 F.3d 887, 894 (7th Cir. 2018) (alteration adopted and quota-
tion omitted).
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22-12577 Opinion of the Court 25
We recognize that this Court may have seemed to suggest
something diļ¬erent for the ļ¬rst time in Bailey v. Metro Ambulance
Services, when the opinion stated that the plaintiļ¬ āforfeited any
āconvincing mosaicā argumentā by failing to suļ¬ciently raise it.
992 F.3d 1265, 1273ā74 (11th Cir. 2021). But read closely, the
decision in Bailey was based on the plaintiļ¬ās failure to raise any sort
of argument in favor of his disparate treatment claim. Id. at 1274.
Instead, he had claimed that a convincing mosaic of evidence
supported a diļ¬erent claim he had raised. Id. Because Bailey āmade
no other argumentā in support of his disparate treatment claim,
this Court aļ¬rmed the district courtās decision rejecting that claim.
Id. In other words, the panelās point in Bailey was not that the
plaintiļ¬ had not preserved a convincing mosaic argument by failing
to use those magic words; it was that he had failed to preserve any
argument at all.
The partial dissent, in contrast, reads Bailey to say that a
plaintiļ¬ forfeits convincing mosaic arguments by failing to use that
speciļ¬c phrase below. Hull Partial Dissent at 12ā17. Though we
think that is not the best reading, weāll admit it is a plausible one.
But it also stands contrary to our decision in Berry v. Crestwood
Healthcare LP. Under the prior-panel precedent rule we are
obligated to reconcile Bailey with Berry āif at all possible.ā United
States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993); see also Babb v.
Secāy, Depāt of Veterans Aļ¬s., 992 F.3d 1193, 1203 (11th Cir. 2021).
Our reading of Bailey as addressing a complete failure to defend a
claim at summary judgment oļ¬ers a clear way to harmonize the
two cases.
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26 Opinion of the Court 22-12577
In Berry, we rejected the defendant employerās claim that a
plaintiļ¬ had forfeited the right to raise certain arguments under a
convincing mosaic umbrella on appeal because at the district court
she had cited certain evidence only to support her McDonnell
Douglas arguments. Berry, 84 F.4th at 1306ā07, 1309, 1312ā13. No
matterāit is issues, not arguments in support of those issues, that
can be forfeited if not raised below. Id. at 1312; see also Yee v. City of
Escondido, 503 U.S. 519, 534ā35 (1992). āThe legal standardāand
the question for the court at summary judgment,ā we said, āis only
whether the evidence permits a reasonable factļ¬nder to ļ¬nd that
the employer retaliated against the employee.ā Berry, 84 F.4th at
1311.
We disagree with the partial dissentās view that Berry is
irrelevant here because the plaintiļ¬ in that case used the words
āconvincing mosaicā in the district court for one of the claims
raised, thereby preserving the issue for appeal. Hull Partial Dissent
at 17ā19. The plaintiļ¬ used those magic words, it is true. But as
explained above, that was not the basis for the Berry panelās
decision. The Court recalled that āāconvincing mosaicā is a
metaphor, not a legal test and not a framework.ā Berry, 84 F.4th at
1311. Indeed, any other response would have been inconsistent
with our statement more than two decades earlier that āthe
plaintiļ¬ will always survive summary judgment if he presents
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22-12577 Opinion of the Court 27
circumstantial evidence that creates a triable issue concerning the
employerās discriminatory intent.ā Smith, 644 F.3d at 1328. 11
11 We also disagree with the partial dissentās citation to unpublished cases,
which do not prove the point that opinion suggests in any event. See Hull
Partial Dissent at 2 n.2. I will not belabor the argument for too long because,
as the partial dissent admits, unpublished cases āare not precedential and they
bind no one.ā Ray v. McCullough Payne & Haan, LLC, 838 F.3d 1107, 1109 (11th
Cir. 2016). I think it valuable to note, however, that two of the cases cited
perform a typical summary judgment analysis even though they disclaim any
consideration of the plaintiffās convincing mosaic arguments. Corley v. Mer-
cedes-Benz U.S. Intāl, Inc., No. 21-11986, 2022 WL 2345808 at *3ā5 (11th Cir.
June 29, 2022) (unpublished); Skelton v. Birmingham Airport Auth., No. 20-13982,
2021 WL 4476800 at *3ā4 (11th Cir. Sept. 30, 2021) (unpublished). In other
words, those cases already do what this opinion suggests is required. See, e.g.,
Skelton, 2021 WL 4476800 at *4 (āthe record evidence did not show a genuine
dispute as to any material factā). Another case, like Bailey, rejects a claim be-
cause no argument was made at all; indeed, the plaintiff expressly disclaimed
any sort of single-motive theory at the district court. Subotic v. Jabil, Inc., No.
22-13880, 2024 WL 797140 at *6 (11th Cir. Feb. 27, 2024) (unpublished). More
persuasive, in our view, is that since Berry was issued at the end of 2023, at
least three cases have rejected the idea that the words āconvincing mosaicā
need to be used at the district court for us to consider a case under the ordinary
summary judgment standard on appeal, and another considered a Title VII
case that was briefed without explicitly relying on McDonnell Douglas or using
the term āconvincing mosaic.ā Dowdell-McElhaney v. Glob. Payments Inc., No.
23-10334, 2024 WL 2796976 (11th Cir. May 31, 2024) (unpublished); Jeter v.
Roberts, No. 22-13983, 2024 WL 507183 (11th Cir. Feb. 9, 2024) (unpublished);
Jones v. Gadsden Cnty. Sch., No. 23-11090, 2024 WL 446241 (11th Cir. Feb. 6,
2024) (unpublished); Valdes v. Kendall Healthcare Grp., Ltd., No. 23-12983, 2024
WL 3356965 (11th Cir. July 10, 2024) (unpublished). If anything, Berry offered
a clarity that has not caused problems here or in the district courtāone that
we would interrupt by holding the opposite.
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28 Opinion of the Court 22-12577
In short, the terms āMcDonnell Douglasā and āconvincing
mosaicā do not dictate the legal standard that plaintiļ¬s are entitled
to receive at summary judgment. We now consider whether the
district courtās conclusion that McCreight and Wester failed to
provide enough evidence for their ADEA claims to survive
summary judgment was correct.
B.
To determine whether McCreight and Westerās convincing
mosaic arguments on appeal were preserved below, we look to the
recordāparticularly the evidence and issues they advanced before
the district court at summary judgment. McCreight and Wester
argued below that they provided enough evidence for a reasonable
juror to infer intentional discrimination. The district court
conducted a pretext analysis, which the Supreme Court has said
merges with the ultimate summary judgment question. Texas
Depāt of Cmty. Aļ¬s. v. Burdine, 450 U.S. 248, 256 (1981). The district
court concluded that McCreight and Wester had failed to provide
enough evidence to suggest that AuburnBankās reason for ļ¬ring
them was pretextual. In other words, the district court found that
McCreight and Westerās ADEA claims failed the ordinary summary
judgment standard.12
12 This is one reason that we do not share the partial dissentās concern about
fair notice to the district court. See Hull Partial Dissent at 12, 20ā22. Here, as
in most cases, the district court considered the plaintiffsā evidence without
grounding the conclusion in anything but the ordinary summary judgment
standard. Whatās more, the evidence is the same either way. As we explained
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22-12577 Opinion of the Court 29
On appeal, McCreight and Wester again challenge the
district courtās conclusion that there was not enough evidence to
suggest intentional discrimination. They rely on all the same
evidence as they did belowābut this time they add the term
āconvincing mosaic.ā That new phrase, however, does not bring
with it any new arguments. Contra Hull Partial Dissent at 20ā21.
McCreight and Westerās arguments on appeal are substantively the
same as they were at the district court: that the evidence presented
is enough for a reasonable juror to infer intentional discrimination
by AuburnBank.
So although McCreight and Wester did not mention
āconvincing mosaicā by name in reference to their ADEA claim
before the district court, the district courtās ultimate task was to
consider whether they had put enough evidence in the record to
convince a jury that they had faced age discrimination. That is
exactly what it did. The court explained that neither woman could
show that the bankās true reason for ļ¬ring them was age
discrimination.
That determination was correct. We start with McCreight,
who points to ļ¬ve other AuburnBank employees as examples of
diļ¬erential treatment based on age. McCreight also tries to cast
doubt on whether her termination was justiļ¬ed, arguing that she
here and in Tynes, at the third step of McDonnell Douglas the plaintiff tries to
showāwith whatever evidence she hasāthat āthe real reason for the employ-
ment action was discrimination.ā Tynes, 88 F.4th at 944.
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30 Opinion of the Court 22-12577
was never told to use a new prequaliļ¬cation letter, that she was
given permission to use the old letter, and that AuburnBank
deviated from its policies by ļ¬ring her. Finally, McCreight relies on
Kingās statements about wanting to hire younger women.
This evidence is not enough to show that age discrimination
was the true reason McCreight was ļ¬red. The record reļ¬ects that
she improperly approved an unqualiļ¬ed borrower without
authorization to do so. Her contention that she did not know
about the new form letter she was supposed to use falls ļ¬at; the
record also shows that she was copied on emails instructing
mortgage loan originators to use the new format rather than the
old one. And that was not her ļ¬rst errorāMcCreight had made
other serious mistakes and received a reprimand and warning for
each.
Whatās more, the other evidence McCreight points to does
not suggest that King ļ¬red her because of her age. Three of the
other employees she names made mistakes, but none of these
mistakes were severe or costly violations like McCreightās. And
while two others did make serious and costly mistakes, both
resigned or transferredāand neither of them worked under King.
Moreover, while we agree that Kingās comments support
McCreightās claims of discrimination, stray comments alone are
not enough to overcome the summary judgment standard. See
Beaver v. Rayonier, Inc., 200 F.3d 723, 729ā30 (11th Cir. 1999).
Because McCreight failed to provide suļ¬cient evidence for a
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22-12577 Opinion of the Court 31
reasonable juror to infer that age was the reason for her
termination, her ADEA claim fails.
Wester also fails to provide enough evidence to support her
ADEA discrimination claim. She relies on largely the same
evidence as McCreight, but adds that she did not commit a serious
violation justifying her termination. She contends that the failure
to verify a borrowerās employment was not actually her own
because she had asked her coworkers to handle it while she was out
of the oļ¬ce.
But Wester too had a history of not completing her work on
time, and she admits that she failed to timely verify the borrowerās
employment status as her job required. While Wester points to a
lack of discipline for various other employees as evidence of age
discrimination, that does not move the needle. Without any other
evidence, diļ¬erent treatment of diļ¬erent employees with diļ¬erent
violations of diļ¬erent rules is not enough. Because neither Wester
nor McCreight provided enough evidence to suggest that they
were ļ¬red because of their age, their ADEA discrimination claims
fail.
V.
We now turn to McCreight and Westerās Title VII and
ADEA retaliation claims. Both statutes prohibit an employer from
discriminating against an employee because she āhas opposed any
practice made an unlawful employment practice.ā 42 U.S.C.
Ā§ 2000e-3(a); see also 29 U.S.C. Ā§ 623(d). āTo that end, employers
cannot retaliate against employees who have complained aboutā
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32 Opinion of the Court 22-12577
that is, opposedādiscriminationā based on sex, age, or other
protected characteristics. Martin v. Fin. Asset Mgmt. Sys., Inc., 959
F.3d 1048, 1053 (11th Cir. 2020).
Three things are required at the outset to support a
retaliation claim: (1) a protected activity, (2) an adverse
employment action, and (3) a causal connection between them.13
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). McCreight
and Wester meet the ļ¬rst two: both complained to human
resources about King, and their ļ¬rings were adverse employment
actions. See Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 715
n.2 (11th Cir. 2002); Crawford, 529 F.3d at 970.
But the third element presents a problem. McCreight and
Wester do not show causation, which requires more than some sort
of temporal proximity between the employeeās complaints and the
adverse employment action. Proof of the decisionmakerās
knowledge or awareness of those complaints is also required.
Martin, 959 F.3d at 1054. McCreight says she complained to Laura
Carrington in human resources āthat false rumors were being
spread about herā and that she was the victim of both age and sex
discrimination. She also says that she complained to Vice President
Terry Bishop once a month starting in December 2017 that King
was wanting to get rid of older females and replace them with
younger workers.
13 The same standards apply for both Title VII and ADEA claims. Hairston v.
Gainesville Sun Publāg Co., 9 F.3d 913, 919 (11th Cir. 1993).
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22-12577 Opinion of the Court 33
So far so good. Her evidence, however, is missing an
essential link. The record does not show that either of the
decisionmakers knew that McCreight had complained about sex or
age discrimination. To start, both King and Herring deny any
knowledge of her internal discrimination complaints. Carrington
did meet with the two supervisors, but her contemporaneous notes
reļ¬ect that she shared only McCreightās complaint that King had
spread false rumors about her; there is no discussion of
McCreightās discrimination complaints. And McCreight makes no
argument at all that Bishop told anyone else about her
conversations with him.
She does suggest that Carrington must have told King, even
though Carrington says diļ¬erently, or that at the very least this is a
disputed issue of fact for the jury. But āa jury ļ¬nding that a
decisionmaker was aware of an employeeās protected conduct
āmust be supported by reasonable inferences from the evidence,
not mere speculation.āā Martin, 959 F.3d at 1053 (quoting Clover v.
Total Sys. Servs., Inc., 176 F.3d 1346, 1355 (11th Cir. 1999)). Here, all
we have is the latterāmere speculation.
Westerās case is even weaker. She concedes that she did not
use the word āageā when she complained to Carrington about a
hostile work environment. But she says that a jury could infer that
she was complaining about age discrimination because she referred
to other women who had been ļ¬red, and those other women, it
turns out, were over the age of forty.
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34 Opinion of the Court 22-12577
Complaining about a hostile work environment is diļ¬erent
from complaining about age discrimination. And in Westerās own
telling, she never complained speciļ¬cally about age discrimination;
she told Carrington that she did not like her work environment and
requested a transfer. The record reļ¬ects that Carrington told King
and Herring that Wester had requested a transferānot that she had
complained of age discrimination, or rooted her transfer request in
that complaint. And King and Herring both deny knowledge that
Wester had made any complaints about age discrimination. That
Carrington could have told King about her complaints isāagainā
too attenuated. Martin, 959 F.3d at 1053ā55. While Wester shows
temporal proximity (she was ļ¬red two days after complaining), that
is not enough on its own. Id. at 1054. Because both McCreight and
Wester failed to show causation, their retaliation claims fail.
* * *
Our employment discrimination caselaw provides many
approaches for plaintiļ¬s seeking relief from discrimination. But all
roads lead to Rule 56āso long as a plaintiļ¬ oļ¬ers enough evidence
for a reasonable jury to infer illegal discrimination, her Title VII
claim will survive summary judgment. Here, because neither
McCreight nor Wester did so, we AFFIRM.
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22-12577 ABUDU, J., Concurring 1
ABUDU, Circuit Judge, Concurring:
I agree with the majority opinion that neither McCreight
nor Wester presented suļ¬cient evidence to avoid summary judg-
ment on their discrimination claims. I write separately to oļ¬er
some perspective with respect to the āsex-plusā dilemma plaintiļ¬s
who are members of multiple protected groups face when trying
to assert and prove their discrimination claims.
While the majority opinion articulates the current state of
law when it comes to claims that McCreight deems āintersectionalā
and the majority opinion refers to as āsex-plus,ā these identity con-
structions are more nuanced and merit further attention. Because
these kinds of intersectionality claims are not only related to sex-
based discrimination, I refer to them as āsubgroup discriminationā
claims. See Marc Chase McAllister, Proving Sex-Plus Discrimination
through Comparator Evidence, 50 Seton Hall L. Rev. 757, 760 (2020)
(āSubgroup discrimination claims . . . focus on the employerās
treatment of one segment of a protected group . . . rather than the
group as a whole . . . .ā).
Individuals who are members of multiple protected classes
face a heightened risk of discrimination. See Trina Jones, Title VII
at 50: Contemporary Challenges for U.S. Employment Law, 6 Ala. C.R.
& C.L. L. Rev. 45, 49 (2014) (āFor example, an employer may treat
an Asian woman diļ¬erently from a White woman or an Asian
man . . . . Thus, she may be subject to stereotypes to which White
women and Asian men are immune.ā); KimberlĆ© Crenshaw, Map-
ping the Margins: Intersectionality, Identity Politics, and Violence Against
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2 ABUDU, J., Concurring 22-12577
Women of Color, 43 Stan. L. Rev. 1241, 1244 (1991) (āBecause of their
intersectional identity as both women and of color within dis-
courses that are shaped to respond to one or the other, women of
color are marginalized within both.ā (emphasis in original)). De-
spite this increased risk of discrimination, the legal landscape is of-
ten unreceptive to subgroup discrimination claims. To begin with,
the diļ¬erent statutory schemes for guarding against discrimination
create additional complexities for subgroup discrimination plain-
tiļ¬s. For example, as explained in the majority opinion, a plaintiļ¬
who is discriminated against on the basis of being a female above
the age of forty could bring a Title VII sex-discrimination claim on
a āsex-plus-ageā basis. See Maj. Op. at 10ā11. In that instance, the
plaintiļ¬ may proceed under either a single-motive or mixed-motive
theory of discrimination. Id. at 12ā13. However, if that same plain-
tiļ¬ brought a claim for the same alleged discrimination under the
ADEA, she could not prevail on a mixed-motive theory. See Gross
v. FBL Fin. Servs., Inc., 557 U.S. 167, 175ā76 (2009) (holding that the
ADEA does not authorize a mixed-motive age discrimination
claim).
Unfortunately, the challenges for plaintiļ¬s do not stop at the
potential statutory distinctions on subgroup discrimination claims.
Scholars and litigants have advocated for greater acknowledgement
of subgroup discrimination claims, and development of protec-
tions for these individuals has been slow. Jones, supra, at 49ā51.
Whatever progress has been made has yet to provide a framework
to address the subtle, but undeniable forms of discrimination sub-
group members may encounter. See id. at 50ā51 (describing subsets
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22-12577 ABUDU, J., Concurring 3
of workers who may be harmed based on intra-group diļ¬erences
such as skin tone, oneās pride in their racial heritage, or other as-
pects of multiple social identities). Even worse, some of the most
basic questions in this area of law remain unanswered. For exam-
ple, federal courts are divided on the exact requirements for prov-
ing subgroup discrimination claims. Compare Frappied v. Aļ¬nity
Gaming Black Hawk, LLC, 966 F.3d 1038, 1048 (10th Cir. 2020) (hold-
ing that a sex-plus plaintiļ¬ āmust show unfavorable treatment rela-
tive to an employee of the opposite sex who also shares the āplus-ā
characteristicā), and Fisher v. Vassar Coll., 70 F.3d 1420, 1446 (2d Cir.
1995) (āTo establish that [an employer] discriminated on the basis
of sex plus marital status, [a] plaintiļ¬ must show that married men
were treated diļ¬erently from married women.ā (emphasis in origi-
nal)) (subsequent history omitted), with Sprogis v. United Air Lines,
Inc., 444 F.2d 1194, 1198 (7th Cir. 1971) (ļ¬nding discrimination
claim based on employerās policy of terminating married women
was not ānegated by [employer]ās claim that the female employees
occupy a unique position so that there is no distinction between
members of opposite sexes within the job categoryā), and McGrena-
ghan v. St. Denis Sch., 979 F. Supp. 323, 327 (E.D. Pa. 1997) (ļ¬nding
plaintiļ¬ survived summary judgment on her sex-plus Title VII dis-
crimination claim where comparator was another woman who was
not in her proļ¬ered subgroup of āwomen who have children with
disabilitiesā).
As this Court interprets and applies laws protecting employ-
ees from discrimination, we should be mindful of individuals who
face discrimination based on membership in more than one
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4 ABUDU, J., Concurring 22-12577
protected class and that the existing legal framework for protecting
them is often inadequate to address the multiple layers of discrim-
inatory behavior.
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22-12577 Hull, J., Concurring in part and Dissenting in part 1
HULL, Circuit Judge, Concurring in part and Dissenting in part:
I concur in full in Sections I, II, III, and V of the Courtās opin-
ion, which aļ¬rms summary judgment for the defendants on
(1) plaintiļ¬ McCreightās sex discrimination claim under Title VII
and (2) plaintiļ¬s McCreightās and Westerās retaliation claims under
Title VII and the ADEA. However, I am unable to join Section IV
as to the plaintiļ¬sā age discrimination claims because Section IV
does not follow our forfeiture precedent and violates our prior
panel precedent rule.
Our Bailey forfeiture precedent holds that a plaintiļ¬ forfeits
the āconvincing mosaicā way of inferring discriminatory intent by
failing to squarely present that issue in the summary judgment
brieļ¬ng in the district court. See Bailey v. Metro Ambulance Servs.,
Inc., 992 F.3d 1265, 1273-74 (11th Cir. 2021). As the defendants em-
phasize, the plaintiļ¬s forfeited the āconvincing mosaicā issue as to
their age claims because in the district court they briefed their cir-
cumstantial evidence as to those claims under only the McDonnell
Douglas framework. 1 Under our forfeiture precedent in Bailey,
plaintiļ¬s cannot switch horses at this stage by raising and brieļ¬ng
the āconvincing mosaicā issue for the ļ¬rst time on appeal. I dissent
because Section IV both violates our forfeiture precedent and
adopts a new no-forfeiture rule that deprives district courts of fair
notice and brieļ¬ng of the issues to be decided.
1 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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2 Hull, J., Concurring in part and Dissenting in part 22-12577
To be clear, this case is not about which of those two diļ¬er-
ent circumstantial evidence toolsāMcDonnell Douglasās framework
or the alternative āconvincing mosaicā metaphorāis the better,
less judge-made, or more direct method to defeat summary judg-
ment. Rather, the threshold question here is only a forfeiture issue.
Bear with me as I walk through these four points:
(1) What actually happened in the district court and how as
to their age claims the plaintiļ¬s did not raise or brief the āconvinc-
ing mosaicā issue in the district court and thus forfeited that issue
on appeal.
(2) Our Baileyās forfeiture holdingāthat a plaintiļ¬ forfeits
the āconvincing mosaicā way of inferring discriminatory intent by
failing to present that issue in the summary judgment brieļ¬ngā
and why Bailey controls this case. 2
(3) Why the Courtās assertionāthat our 2021 Bailey decision
āstands contrary to our decision inā Berry v. Crestwood Healthcare LP,
84 F.4th 1300 (11th Cir. 2023)āis wrong. Plaintiļ¬ Berry raised the
āconvincing mosaicā issue in the district court. What changed on
appeal in Berry was the plaintiļ¬ās speciļ¬c arguments falling under
the same āconvincing mosaicā umbrella. In contrast, here the
plaintiļ¬s switched wholly from a McDonnell Douglas issue in the
2 As detailed in specific citations in my last section, our Court, often citing Bai-
ley, has correctly held in many recent unpublished decisions that a plaintiffās
failure to raise explicitly the āconvincing mosaicā issue in the district court for-
feits that issue on appeal.
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22-12577 Hull, J., Concurring in part and Dissenting in part 3
district court to solely the āconvincing mosaicā issue on appeal,
which makes this case fall under Bailey and shows there is no con-
ļ¬ict between Bailey and Berry.
(4) The consequences of the Courtās adoption of a new no-
forfeiture rule that collapses McDonnell Douglas and the āconvincing
mosaicā issues into a single issue, whereby the plaintiļ¬s can pre-
serve the āconvincing mosaicā issue on appeal even though the
plaintiļ¬s raised and briefed only the McDonnell Douglas issue in the
district court.
I. DISTRICT COURT PROCEEDINGS
A. Defendantsā Briefs in Support of Summary Judgment
In the district court, the defendants asserted they were enti-
tled to summary judgment on the plaintiļ¬sā age claims under both
McDonnell Douglasās three-step burden-shifting framework and the
alternative āconvincing mosaicā method. 3 The defendantsā briefs
had a numbered section devoted to McDonnell Douglas in which
they analyzed the evidence and argued the plaintiļ¬s failed to satisfy
their prima facie case burden to present evidence of valid compar-
ators.
The defendantsā briefs also had a separately numbered sec-
tion entitled: āThere is no āconvincing mosaic of circumstantial evi-
dence.āā (Emphasis added.) That section expressly acknowledged
3 For each plaintiff, the defendants filed a separate brief which followed the
same pattern, so I treat them jointly. The plaintiffs filed a joint response.
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4 Hull, J., Concurring in part and Dissenting in part 22-12577
that McDonnell Douglas ā[wa]s not the only avenueā for the plaintiļ¬s
to survive summary judgment. The defendantsā briefs cited some
of our convincing mosaic precedent, including Smith v. Lockheed
Martin Corp., 664 F.3d 1321 (11th Cir. 2011). The defendantsā briefs
even correctly stated the general āconvincing mosaicā principle:
āThe triable issue exists if āthe record, viewed in the light most fa-
vorable to the plaintiļ¬, presents a convincing mosaic of circum-
stantial evidence that would allow a jury to infer intentional dis-
crimination by the decisionmaker.āā And then, the defendantsā
briefs analyzed all the circumstantial evidence under the āconvinc-
ing mosaicā approach.
What happened next makes the plaintiļ¬sā forfeiture crystal
clear.
B. Plaintiļ¬sā Joint Summary Judgment Response
Even though the defendantsā briefs had separate sections on
the āconvincing mosaicā approach and the McDonnell Douglas
framework, the plaintiļ¬sā joint response brief did not raise or brief
the alternative āconvincing mosaicā method or cite any of this
Courtās convincing mosaic decisions as to their age claims.
Rather, the plaintiļ¬sā joint response brief cited only McDon-
nell Douglas cases and addressed only the three McDonnell Douglas
steps of the prima facie case, the legitimate reason for the termina-
tion, and pretext. More speciļ¬cally, the plaintiļ¬sā summary judg-
ment response claimed each had demonstrated a prima facie case
of age discriminationāWester by being replaced with a younger
employee and McCreight by pointing to a younger, similarly
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22-12577 Hull, J., Concurring in part and Dissenting in part 5
situated comparator who was not terminated. The plaintiļ¬s also
argued AuburnBankās proļ¬ered reasons for ļ¬ring them were not
legitimate and were pretextual.
Whatās more, in outlining the applicable law as to their age
claims, the plaintiļ¬s cited these three cases, which all applied only
McDonnell Douglasās three-step framework and did not mention the
āconvincing mosaicā method at all: Kragor v. Takeda Pharmaceuticals
America, Inc., 702 F.3d 1304 (11th Cir. 2012); Crawford v. City of Fair-
burn, 482 F.3d 1305(11th Cir. 2007); and Cobb v. City of Roswell,533 F. Appāx 888
(11th Cir. 2013).
Notably, too, the plaintiļ¬sā āpretextā argument was that the
defendantsā proļ¬ered legitimate reason for terminating them was
not worthy of credence and thus pretextual, citing the McDonnell
Douglas case of Springer v. Convergys Customer Management Group,
Inc., 509 F.3d 1344 (11th Cir. 2007).
The plaintiļ¬sā omission of the āconvincing mosaicā issue as
to their age claims is particularly glaring given that a separate sec-
tion of the plaintiļ¬sā same joint summary judgment response ad-
dressed McCreightās sex-plus discrimination claim and explicitly
raised the āconvincing mosaicā issue by name and cited our āconvinc-
ing mosaicā cases.
C. District Courtās Summary Judgment Order
Given how the plaintiļ¬s elected to brief their age claims, the
district court understandably analyzed those claims under only
McDonnell Douglasās frameworkāthe only way the plaintiļ¬s briefed
that issue. The Court states āthe district court considered the
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6 Hull, J., Concurring in part and Dissenting in part 22-12577
plaintiļ¬sā evidence without grounding the conclusion in anything
but the ordinary summary judgment standard.ā Maj. Op. at 28 n.12
(citing Doc. 142 at 9-35). That is simply not accurate. The district
courtās conclusions as to the plaintiļ¬sā age discrimination claims
were grounded very particularly and exclusively in its analysis of
the steps of the McDonnell Douglas framework.
First, in Section V.B.1 of its order, the district court ādis-
pense[d] withā whether McCreight made a prima facie case and an-
alyzed whether AuburnBankās proļ¬ered reason for terminating her
was pretextual because that āpretext analysis [was] dispostive.ā
The district court concluded that McCreightās evidenceāwhich in-
cluded Kingās ageist comments and the more favorable treatment
for younger workersā mistakesāāfailed to demonstrate pretext.ā
Moving to plaintiļ¬ Westerās age claims, the district court
concluded in Section V.B.2 of its order that (1) Wester had estab-
lished a prima facie case under the McDonnell Douglas framework,
(2) but her circumstantial evidenceāthe same as McCreightās evi-
denceāwas āinsuļ¬cient to rebutā AuburnBankās legitimate reason
for terminating Wester, and (3) thus āWester ha[d] failed to present
suļ¬cient evidence to demonstrate that AuburnBankās reason for
ļ¬ring her was pretextual.ā
Section V.B. of the district courtās order did not consider
whether either plaintiļ¬ās circumstantial evidence, although insuļ¬-
cient to satisfy the pretext prong of the McDonnell Douglas frame-
work, could nonetheless support a reasonable inference of discrim-
inatory intent. And the district court cannot be faulted for this
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22-12577 Hull, J., Concurring in part and Dissenting in part 7
omission because neither plaintiļ¬ gave the court any indication in
their joint summary judgment response that they were relying on
the convincing mosaic approach to defeat summary judgment on
their age claims.
Contrary to Section IV of the Courtās opinion, the forfeiture
issue is not about āmagic wordsā or the āincantation of particular
words.ā Maj. Op. at 24. Rather, it is about the requirement that the
district court be fairly put on notice of a plaintiļ¬ās claims and the
issues to be decided by the district court. No matter how my col-
leagues try to slice and dice it, the plaintiļ¬s here tried to defeat sum-
mary judgment on their age claims under only the McDonnell Doug-
las framework and nothing else. Thus, the district court addressed
the McDonnell Douglas framework and nothing else.
Now, on appeal, the plaintiļ¬s adopt a diļ¬erent position. As
to their age claims, the plaintiļ¬sā opening appellate brief raises no
issues under McDonnell Douglasās framework and instead contends
only that the district court should have denied summary judgment
under the āconvincing mosaicā method.
The defendants respond that McCreight and Wester for-
feited any reliance on the āconvincing mosaicā approach by failing
to raise and brief it in the district court. This is not close. It is clear
cut what actually happened in the district court, and no glossing
over can change that.
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8 Hull, J., Concurring in part and Dissenting in part 22-12577
II. OUR FORFEITURE PRECEDENT
A. Threshold Question
So, the threshold question for our Court is whether the
plaintiļ¬sā joint summary judgment response in the district court
forfeited the alternative āconvincing mosaicā issue by addressing
only McDonnell Douglasās three-prong framework as to their age
claims.
The Court says no. The ļ¬rst two steps of its reasoning are
that (1) the āconvincing mosaicā approach is no diļ¬erent than the
ordinary summary judgment standard, and (2) the ordinary sum-
mary judgment standard in discrimination cases is whether a plain-
tiļ¬ presented enough evidence for a reasonable jury to infer intent
to discriminate. Maj. Op. at 21. So far, so good. This merely states
the general summary judgment standard in all discrimination
cases.
Only the Courtās third step involves forfeiture and is where I
part company. Hereās the Courtās new no-forfeiture rule:
So long as a plaintiļ¬ argues that she has presented
enough evidence for a reasonable juror to infer inten-
tional discrimination, she has preserved that issue and
put the court on notice of the relevant standard. Re-
gardless of the term usedāāpretext,ā āconvincing
mosaic,ā āsummary judgmentāāthe substance of
the argument is the same.
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22-12577 Hull, J., Concurring in part and Dissenting in part 9
Maj. Op. at 24. In other words, there is no forfeiture of diļ¬erent
issues (such as the McDonnell Douglas framework or the alternative
āconvincing mosaicā issue) at summary judgment in discrimina-
tion cases as long as the plaintiļ¬ merely argues that the evidence
presents a jury issue as to intentional discrimination. That is simply
the Rule 56 standard in every discrimination case and does not fairly
put a district court on notice of what issues to address. Most cer-
tainly, this district court was not on notice of the āconvincing mo-
saicā issue given how the plaintiļ¬s briefed their case only under the
McDonnell Douglas framework. Just the opposite.
In any event, the Courtās new no-forfeiture rule violates our
prior panel precedent in Bailey, which held a plaintiļ¬ forfeits the
āconvincing mosaicā issue by failing to squarely present it in the
summary judgment briefs in the district court. See Bailey, 992 F.3d
at 1273-74.
Some table setting before diving into our forfeiture prece-
dent and how the Court violates our prior Bailey precedent.
B. Two Ways to Use Circumstantial Evidence to Defeat
Summary Judgment
The McDonnell Douglas burden-shifting framework and the
more expansive āconvincing mosaicā approach are two diļ¬erent
tools or ways to use circumstantial evidence to create an inference of
intentional discrimination to defeat summary judgment. Even the
Majority describes them as ātwo waysā or ātwo pathsā to attempt
to defeat summary judgment. Maj. Op. at 2, 21.
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10 Hull, J., Concurring in part and Dissenting in part 22-12577
To date, our precedent treats them as alternative tools and
analyzes the issues separately using diļ¬erent analytical factors. See,
e.g., Berry, 84 F.4th at 1307-13 (stating the McDonnell Douglas three-
step framework is āone toolā and ānot the exclusive meansā and
analyzing plaintiļ¬ās Title VII retaliation claim ļ¬rst under the
McDonnell Douglas framework and alternatively, in a separate sec-
tion, under the āconvincing mosaicā method that uses circumstan-
tial evidence of any kind (quotation marks omitted)); Yelling v. St.
Vincentās Health Sys., 82 F.4th 1329, 1341-42 (11th Cir. 2023) (same);
Ossmann v. Meredith Corp., 82 F.4th 1007, 1015-20 (11th Cir. 2023)
(analyzing plaintiļ¬sā circumstantial evidence of race discrimination
under the āconvincing mosaicā approach as āan alternativeā after
concluding the circumstantial evidence could not satisfy the third
step of the McDonnell Douglas framework); Jenkins v. Nell, 26 F.4th
1243, 1249-51(11th Cir. 2022) (analyzing plaintiļ¬ās42 U.S.C. Ā§ 1981
race discrimination claim ļ¬rst under the McDonnell Douglas frame-
work and alternatively under the āconvincing mosaicā method).4
4 See also Lewis v. City of Union City, 918 F.3d 1213, 1231 & n.20 (11th Cir. 2019)
(en banc) (Lewis I) (concluding plaintiffās circumstantial evidence did not sat-
isfy the McDonnell Douglas framework, noting Lewisās ADA claims and ācon-
vincing mosaicā ātheoryā of Title VII liability were not before the en banc
court, and remanding ā[t]hose issues, and any other pending matters . . . to the
panel for resolution in the first instanceā); Lewis v. City of Union City, 934 F.3d
1169, 1185-89 (11th Cir. 2019) (Lewis II) (concluding on remand that the plain-
tiff prevailedāi.e., survived summary judgmentāon āconvincing mosaicā
grounds).
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22-12577 Hull, J., Concurring in part and Dissenting in part 11
Given our consistent recognition of the two alternative ways
to use circumstantial evidence, it is not surprising that our forfei-
ture precedent in Bailey treats them as separate issues and requires
them to each be raised or be forfeited. See Bailey, 992 F.3d at 1274
(holding a plaintiļ¬ forfeits the āconvincing mosaicā issue by failing
to squarely present it in the summary judgment brieļ¬ng in the dis-
trict court).
Our Bailey precedent is on point. Although the Court in Sec-
tion IV suggests my reading of Bailey is āa plausible one,ā Section
IV asserts it āstands contrary to our decisionā in Berry and thus we
must āreconcile Bailey with Berry.ā Maj Op. at 25. The Court also
asserts āthe partial dissentās viewā is that āBerry is irrelevant.ā Maj.
Op. at 26.
Not so. To be clear, my view is Bailey (2021) and Berry (2023)
involved diļ¬erent questions, and there is no conļ¬ict between them.
Speciļ¬cally, in Berry: (1) the plaintiļ¬ separately and adequately
raised both the McDonnell Douglas issue and the āconvincing mo-
saicā issue in the district court; (2) the Berry Court addressed both
issues in separate sections; (3) the plaintiļ¬ advanced the same issue
in the district court and on appeal: whether āshe presented a con-
vincing mosaic of circumstantial evidence that raises a reasonable
inference of retaliation,ā Berry, 84 F.4th at 1311; but (4) what
changed on appeal was Berryās speciļ¬c arguments falling under the
same āconvincing mosaicā umbrella. In contrast, the Bailey plaintiļ¬
did not squarely raise the āconvincing mosaicā issue at all in the
district court and forfeited the issue on appeal. Thus, this case falls
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12 Hull, J., Concurring in part and Dissenting in part 22-12577
under Bailey and not Berry. My detailed tour of Bailey and Berry
shows Bailey controls our case and how the Court violates the prior
panel precedent rule by not following it.
C. Access Now and then Bailey
Long before Bailey, our Circuit had already established the
rule āthat an issue not raised in the district court and raised for the
ļ¬rst time in an appeal will not be considered by this [C]ourt.ā Ac-
cess Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)
(quotation marks omitted). 5 The corollary of this rule is that, if a
party hopes to preserve a claim, issue, theory, or defense on appeal,
she must ļ¬rst clearly present it to the district court, that is, āin such
a way as to aļ¬ord the district court an opportunity to recognize and
rule on it.ā Juris v. Inamed Corp., 685 F.3d 1294, 1325 (11th Cir. 2012)
(quotation marks omitted).
As to the plaintiļ¬sā age claims, the district court here ad-
dressed only the three steps of the McDonnell Douglas framework
because that was what the plaintiļ¬s briefed as to their age claims
and was the clear brieļ¬ng signal to the district court. How the
plaintiļ¬s briefed their case did not give the district court fair notice
it needed to rule on the āconvincing mosaicā approach as to their
age claims. We could apply Access Now and be done.
5 Although there are circumstances in which we may address an issue raised
for the first time on appeal, none of those circumstances apply here. See Access
Now, 385 F.3d at 1332.
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22-12577 Hull, J., Concurring in part and Dissenting in part 13
But thereās even more precedentāBaileyāwhich addresses
the speciļ¬c forfeiture issue here. In Bailey, our Court concluded
that a plaintiļ¬ forfeits a āconvincing mosaic theoryā of showing
discriminatory intent by failing to āsquarely present[]ā it in sum-
mary judgment brieļ¬ng in the district court. Bailey, 992 F.3d at
1273-74.
This is consistent with how we also have concluded a party
can forfeit sub-issues under the McDonnell Douglas framework of
proving intentional discrimination. See Bryant v. Jones, 575 F.3d
1281, 1308 (11th Cir. 2009) (concluding defendant forfeited whether
plaintiļ¬ established a prima facie case under McDonnell Douglas be-
cause it was not argued at summary judgment). It is also consistent
with another discrimination case, in which our Court concluded
that a plaintiļ¬ who āputs all her eggs in the direct-evidence basketā
forfeits āthe available methods of making out a circumstantial-evi-
dence case.ā See Harris v. Pub. Health Tr. of Mia.-Dade Cnty., 82 F.4th
1296, 1301 (11th Cir. 2023).
Now my deep dive through Bailey and then Berry.
1. Bailey
In Bailey, the plaintiļ¬, a Rastafarian, brought three Title VII
claims against his former employer for āfailure to reasonably ac-
commodate Baileyās religious requirement, discrimination on the
basis of religion, and retaliation for ļ¬ling a discrimination claim.ā
992 F.3d at 1269. Bailey claimed his employer ātreated him worse
than non-Rastafarians because he was Rastafarian.ā Id. at 1273. As
to disparate treatment based on religion, Bailey alleged ātwo
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14 Hull, J., Concurring in part and Dissenting in part 22-12577
separate disparate-treatment theories: a traditional disparate-treat-
ment claim and a failure-to-reasonably-accommodate disparate-
treatment claim.ā Id. at 1272. āBailey sought summary judgment
on the retaliation claim, and [his employer] ļ¬led for summary judg-
ment on all claims.ā Id.
In his summary judgment response in the district court, Bailey
actually included the āconvincing mosaicā theory in āhis general dis-
cussion of the law governing disparate-treatment claims.ā Id. at
1273 (emphasis added). Baileyās response asserted that his brief in
support of his own summary judgment motion provided āconvinc-
ing mosaicā evidence of ādirect suspicious timing evidenceā in sup-
port of his traditional disparate treatment claim. Id. However, Bai-
leyās summary judgment brieļ¬ng ādid not deliver on its promise.ā
Id.
Instead, in the district court, Baileyās own summary judgment
brief raised and argued a āconvincing mosaicā theory āin conjunc-
tion with only Baileyās retaliation claimāāānot in conjunction with
a traditional religious disparate-treatment discrimination claim.ā Id.
at 1273-74 (emphasis added). Just like the plaintiļ¬s here.
Then, on appeal, Bailey, like the plaintiļ¬s here, tried to raise
the āconvincing mosaicā issue as to his disparate treatment claim, but
our Court held Bailey had forfeited it. Id. We based this forfeiture
conclusion on ā[t]he clear import of all this brieļ¬ngā in the district
court. Id. at 1274.
Speciļ¬cally, the Bailey Court stated: āWe disagree that Bailey
squarely presented a āconvincing mosaicā argument to support his
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22-12577 Hull, J., Concurring in part and Dissenting in part 15
disparate-treatment theory in his summary-judgment brieļ¬ng in
the district court.ā Id. at 1273. In addition, our Court said that
āwhile Bailey tried in his objections to the report and recommen-
dation to assert a āconvincing mosaicā argument in support of his
traditional disparate-treatment claim, he once again made no speciļ¬c
arguments tying the āconvincing mosaicā theory to his disparate-treatment
claim.ā Id. at 1274 (emphasis added). Bailey twice actually dis-
cussed the āconvincing mosaicā theory in the district courtāin his
general law discussion and in his objections to the report and rec-
ommendation as to his disparate treatment claimābut he never
followed that up with āconvincing mosaicā arguments using or ty-
ing his evidence to that claim. Id. at 1273-74.
In its concluding paragraph as to this issue, this Court
squarely ruled āBailey forfeited any āconvincing mosaicā argument in
support of his traditional religious disparate-treatment discrimination
claim.ā Id. at 1274 (emphasis added). At bottom, Bailey raised the
āconvincing mosaicā issue on appeal, but Bailey forfeited it by not
raising it adequately as to his disparate treatment claim in the dis-
trict court. And since Bailey on appeal āmade no other argument to
support that version of his disparate-treatment discrimination
claim, we aļ¬rm[ed] the district courtās grant of summary judg-
ment for [his employer] on Baileyās traditional religious disparate-
treatment discrimination claim.ā Id. In other words, the āconvinc-
ing mosaicā theory was the only argument Bailey made on appeal
as to his traditional disparate treatment claim, but it was not
squarely raised in the district court and thus was forfeited on ap-
peal, requiring us to aļ¬rm summary judgment.
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16 Hull, J., Concurring in part and Dissenting in part 22-12577
The Court tries to write around Bailey. The Court admits
the Bailey decision āstated that the plaintiļ¬ āforfeited any āconvinc-
ing mosaicā argumentā by failing to suļ¬ciently raise itā in the dis-
trict court. Maj. Op. at 25. But then comes the dodge. The Courtās
Section IV opines that (1) āthe decision in Bailey was based on the
plaintiļ¬ās failure to raise any sort of argument in favor of his dis-
parate treatment claim,ā (2) Bailey āhad claimed that a convincing
mosaic of evidence supported a diļ¬erent claim he had raised,ā and
(3) thus ā[b]ecause Bailey āmade no other argumentā in support of
his disparate treatment claim, this Court aļ¬rmed the district
courtās decision rejecting that claim.ā Id. This description in Sec-
tion IV strings snippets from Bailey together out of context.
To the contrary, the Courtās focus in Bailey was on whether
the āconvincing mosaicā issue in particular was suļ¬ciently raised in
the district court as to the disparate treatment claim. The Bailey
Court concluded it was not because, although Bailey had men-
tioned āconvincing mosaicā by name in his general discussion of
the law and his objections to the report about his disparate treat-
ment claim, he never tied his āconvincing mosaicā evidence to his
disparate treatment claim. Id. at 1274. Bailey was not about āany
sort of argumentā but was expressly about Baileyās convincing mo-
saic issue in particular.
My above description of Bailey accurately portrays what
happened, what Bailey held, and why it controls this case. That also
explains why, as I show later, our recent decisions cite Bailey and
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22-12577 Hull, J., Concurring in part and Dissenting in part 17
follow its holding that a plaintiļ¬ forfeits the āconvincing mosaicā
issue by failing to raise it squarely in the district court.
2. Berry
In Section IV, the Court argues that our Bailey āstands con-
trary to our decision in Berry,ā and we must āreconcileā them. Maj.
Op. at 25. But Bailey (2021) and Berry (2023) involved diļ¬erent ques-
tions, and there is no conļ¬ict between them that needs reconciling.
As background, the Berry plaintiļ¬ claimed she was termi-
nated in retaliation for complaints of race discrimination. Id. at
1304. The Berry appeal involved only retaliation claims brought
under Title VII and Ā§ 1981. Id. at 1307. At the outset, the Berry
Court states: āBoth statutes require the same proof and analytical
framework,ā and ā[s]o we analyze the claims together.ā Id.
Then, the Berry Court separated its opinion into two parts:
(1) an analysis of Berryās retaliation claims under the McDonnell
Douglas framework, examining the prima facie case, the legitimate
reason for Berryās termination, and pretext in Section III.A. and (2)
a separate analysis of her retaliation claims under the alternative
convincing mosaic approach, examining whether Berryās circum-
stantial evidence of any kind created a reasonable inference of re-
taliatory intent in Section III.B. Id. at 1307-13.
As further background, as to her retaliation claims, it is un-
disputed that the Berry plaintiļ¬ āarguedā the āconvincing mosaicā
issue in opposing summary judgment in the district court. Here
again is what the Berry Court itself said as to the plaintiļ¬ās retalia-
tion claims:
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18 Hull, J., Concurring in part and Dissenting in part 22-12577
Berry responded [to her employerās summary judg-
ment motion] that she had established a prima facie
case because of the close temporal proximity be-
tween her protected activity and termination. And
she argued that [her employerās] justiļ¬cation for her
termination was pretextual. Berry also argued that she
presented a convincing mosaic of circumstantial evidence
of retaliation.
Id. at 1306-07 (emphasis added). Berry did not involve a plaintiļ¬ who
merely intoned the words āconvincing mosaicā and thus failed to
suļ¬ciently raise the āconvincing mosaicā issue in the district court.
Rather, in Berry, the plaintiļ¬ advanced the same āissueā in
the district court and on appealāwhether āshe presented a con-
vincing mosaic of circumstantial evidence that raises a reasonable
inference of retaliation.ā Id. at 1311. The Berry Court explicitly
said: āBerry argues that even if her claims fail under the McDonnell
Douglas framework, her claims survive because she presented a
convincing mosaic of circumstantial evidence that raises a reason-
able inference of retaliation.ā Id. And ā[i]f a party presents an issue
to the district court, she may make any argument in support of that
issue on appeal.ā Id. at 1312.
What changed on appeal was Berryās speciļ¬c āargumentsā
falling under the same āconvincing mosaicā umbrella. See id. (explain-
ing the defendant Crestwood complained āthat Berry did not pre-
serve the convincing-mosaic argumentsā she raised on appeal (em-
phasis added)).
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22-12577 Hull, J., Concurring in part and Dissenting in part 19
The Berry Court rightly rejected the defendantās forfeiture
contention because Berry properly preserved her āconvincing mo-
saicā issue by suļ¬ciently raising and arguing it in the district court
in the summary judgment brieļ¬ng as to her retaliation claims. Id.
at 1307, 1312. And plaintiļ¬ Berry was not limited on appeal to the
precise āconvincing mosaicā arguments she had made in the district
court in support of the clearly preserved āconvincing mosaicā is-
sue. Id. (citing Yee v. City of Escondido, 503 U.S. 519, 534 (1992); Hi-
Tech Pharms., Inc. v. HBS Intāl Corp., 910 F.3d 1186, 1194 (11th Cir.
2018)).
Berry does not cite, or grapple with, our forfeiture precedent
in Bailey (or Harris and Bryant) because it had no reason to do so.
Because the Berry plaintiļ¬ raised the āconvincing mosaicā issue in
the district court as to her retaliation claims, Berry is not this case.
Rather, this case falls directly under Bailey, where the plaintiļ¬ failed
to squarely raise the convincing mosaic issue in the district court.
And for this particular case, even if our 2023 Berry somehow creates
a potential conļ¬ict (which it does not), our 2021 Bailey is ļ¬rst in
time and controls.6
6 The timing perhaps sheds light on whatās really going on. The defendantsā
brief relied on Bailey. Berry was decided on October 27, 2023, after all briefs
were filed but before oral argument in this case on November 15, 2023. Yet
for ten months the plaintiffs have not filed a Rule 28(j) letter citing to Berry.
Rather, the Court itself has seized upon Berry, and, respectfully, misdescribed
it and tried to create a phantom conflict to avoid our Bailey forfeiture prece-
dent.
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20 Hull, J., Concurring in part and Dissenting in part 22-12577
III. ANALYSIS AS TO McCREIGHT AND WESTER
The separate age-discrimination section of the plaintiļ¬sā
summary judgment response did not mention, much less tie, the
āconvincing mosaicā theory to their age claims. This omission was
glaring because the plaintiļ¬sā response did raise and tie the evi-
dence to the āconvincing mosaicā issue as to McCreightās sex-plus
claim. Thus, as in Bailey, McCreight and Wester forfeited the ācon-
vincing mosaicā issue as to their age claims by failing to advance it
in the district court and raising it for the ļ¬rst time on appeal.
My conclusion focuses on what actually occurred in the
brieļ¬ng in this particular case. Here, the district court addressed
what the plaintiļ¬s raised and briefed as to their age claims, and the
plaintiļ¬s are not permitted to raise new issues for the ļ¬rst time on
appeal. Plaintiļ¬s can choose how to litigate their cases in the dis-
trict court and did so here.
IV. CONSEQUENCES OF THE NEW NO-FORFEITURE
RULE
I recognize the plaintiļ¬sā age claims fail on appeal, whether
for procedural reasons (forfeiture) or for substantive reasons (Sec-
tion IVās merits analysis). But I think it is my duty to write
This is not to say courts should not address precedent if not cited by the par-
ties. But it is to say that the plaintiffs have not cited Berry, and thus the Major-
ity, in my view, unfairly accuses the defendants of āignoring our recent prece-
dentā in Berry. Maj. Op. at 21.
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22-12577 Hull, J., Concurring in part and Dissenting in part 21
separately because Section IV not only violates our prior panel
precedent rule but also has signiļ¬cant untoward consequences.
For starters, Section IVās new no-forfeiture ruleāa plaintiļ¬ās
stating the basic summary judgment standard preserves all issuesā
means district courts will not have the required fair notice of the
issues to be decided. To defeat summary judgment, plaintiļ¬s rou-
tinely use one or more evidentiary tools: (1) direct evidence; (2) cir-
cumstantial evidence under McDonnell Douglasās three-step burden-
shifting framework; and (3) circumstantial evidence under the
āconvincing mosaicā theory. Our precedent contains distinct and
diļ¬erent analytical factors in each approach. Plaintiļ¬s need to alert
both the district court and the defendants which evidentiary tools
and analytical factors they rely on. That is only fair notice. But the
Courtās new no-forfeiture rule absolves plaintiļ¬s of that fair-notice
duty.
In turn, the new no-forfeiture rule deprives this appellate
court of the beneļ¬t of the district courtās analysis, in the ļ¬rst in-
stance, applying the diļ¬erent and distinct evidentiary approaches
to the summary judgment record, which is often voluminous in
discrimination cases. This is a case in point. There was no analysis
in the district courtās order of all the circumstantial evidence under
the āconvincing mosaicā issue because the plaintiļ¬s briefed, and
thus the district court addressed, only the McDonnell Douglas issue.
Given these consequences and our forfeiture precedent, I
concur only in the judgment in Section IV of the Courtās opinion,
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22 Hull, J., Concurring in part and Dissenting in part 22-12577
and respectfully dissent from the Courtās failure to follow our for-
feiture precedent as to the plaintiļ¬sā age claims. 7
V. UNPUBLISHED DECISIONS FOLLOWING BAILEY
One last concern. While I rarely cite non-published deci-
sions, the Majorityās failure to follow Bailey in Section IV will be
readily noticed by employment lawyers as conļ¬icting with recent
non-published decisions. So, letās just acknowledge and be candid
about them.
While not binding, this Court, often citing Bailey, has cor-
rectly held in many recent unpublished decisions that a plaintiļ¬ās
failure to raise explicitly the āconvincing mosaicā issue in the dis-
trict court forfeits that issue on appeal. See, e.g., Subotic v. Jabil, Inc.,
No. 22-13880, 2024 WL 797140, at *6-7 & *6 n.4 (11th Cir. Feb. 27,
2024) (citing Bailey and holding, as to plaintiļ¬ās discrimination
claim, he forfeited his āconvincing mosaicā theory by raising it for
7 As an aside, I am sympathetic to the view that perhaps the āconvincing mo-
saicā issue should be the primary issue and the McDonnell Douglas issue ārele-
gate[d] . . . to the sidelines.ā See Tynes v. Fla. Depāt of Juv. Just., 88 F.4th 939, 958
(11th Cir. 2023) (Newsom, J, concurring). But, to date under our forfeiture
precedent, they remain separate issues for good reasonsāso the district court
and the parties have fair notice of the issues to be addressed, and then our
Court has the benefit of the district courtās analysis of each issue.
Indeed, our circuit precedent properly allows plaintiffs in discrimination cases
to raise both issues alternatively. Most litigants do just that. The problem
here is the plaintiffs elected to raise only the McDonnell Douglas issue in the
district court as to their age claims. We should not sacrifice our well-estab-
lished forfeiture precedent because they have elected not to do so.
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22-12577 Hull, J., Concurring in part and Dissenting in part 23
the ļ¬rst time on appeal); Lewis v. Secāy of the U.S. Air Force, No. 20-
12463, 2022 WL 2377164, at *11 (11th Cir. June 30, 2022) (citing
Bailey and holding āLewis has abandoned [her āconvincing mo-
saicā] argument by failing to raise the issue before the district
courtā); Skelton v. Birmingham Airport Auth., No. 20-13982, 2021 WL
4476800, at *3 (11th Cir. Sept. 30, 2021) (citing Bailey and noting a
plaintiļ¬ whose claim fails under McDonnell Douglas may survive
summary judgment through a āconvincing mosaicā of circumstan-
tial evidence, but holding plaintiļ¬ waived the āconvincing mosaicā
issue by failing to raise it below); Corley v. Mercedes-Benz U.S. Intāl,
Inc., No. 21-11986, 2022 WL 2345808, at *3 n.3 (11th Cir. June 29,
2022) (citing our forfeiture precedent in Access Now, 385 F.3d at
1331, and noting a discrimination claim can proceed under either
the McDonnell Douglas framework or āconvincing mosaicā theory,
but analyzing plaintiļ¬ās claim under only the McDonnell Douglas
framework because plaintiļ¬ did not raise the āconvincing mosaicā
theory in the district court, so that issue was not properly before
us); Jest v. Archbold Med. Ctr., Inc., 561 F. Appāx 887, 888-89 (11th Cir.
2014) (predating Bailey but citing Access Now and holding plaintiļ¬
failed to establish a prima facie case of race discrimination under
McDonnell Douglas and forfeited the āconvincing mosaicā issue by
failing to raise it in the district court).8
In its footnote 11, the Majority argues these ļ¬ve non-
published decisions ādo not prove the pointā my partial dissent
8 As now allowed, the defendantsā appellate brief cited the non-published Jest
decision, in addition to our published Bailey. See Fed. R. App. Proc. 32.1.
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24 Hull, J., Concurring in part and Dissenting in part 22-12577
suggests because two of them (Corley and Skelton) āperform a typi-
cal summary judgment analysis.ā Maj. Op. at 27 n.11. Not correct.
In Corley and Skelton, the ātypical summary judgment analysisā per-
formed in those cases was expressly under the McDonnell Douglas
framework, as the alternative convincing mosaic approach was for-
feited. See Corley, 2022 WL 2345808, at *3-4 & n.3; Skelton,2021 WL 4476800
, at *3-4.
And contrary to the Majorityās footnote 11, I respectfully
submit that the Subotic and Lewis decisions also hold directly and
expressly that the plaintiļ¬ forfeited a āconvincing mosaicā issue by
not raising it in the district court. See Subotic, 2024 WL 797140, at
*6 n.4; Lewis, 2022 WL 2377164 at *11.
In its same footnote 11, the Court also cites four diļ¬erent
unpublished decisions āsince Berryā that the Court asserts ārejected
the idea that the words āconvincing mosaicā need to be used at the
district court for us to consider a case under the ordinary summary
judgment standard.ā Maj. Op. at 27 n.11. This is also incorrect.
Those four unpublished decisions never use the word āforfeitureā
anywhere because they did not involve a defendant arguing that the
āconvincing mosaicā issue was forfeited. Whatās more, Berry is
cited in only footnotes and only for the general propositions that a
plaintiļ¬ may survive summary judgment using the alternative ācon-
vincing mosaicā approach and that a āconvincing mosaicā is a met-
aphor, not a test, whereby a plaintiļ¬ may use circumstantial evi-
dence to attempt to create a jury issue.
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22-12577 Hull, J., Concurring in part and Dissenting in part 25
At bottom, the unpublished decisions I cite above follow Bai-
ley, as they must, and the unpublished decisions cited in the Major-
ityās footnote 11 do not involve a forfeiture issue at all, much less
one like Bailey and this case. The only inconsistency here is not
between my cited unpublished decisions and the Majorityās, but
with the Majorityās instant published decision that fails to follow
our Bailey precedent.