Lawanna Tynes v. Florida Department of Juvenile Justice

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13245
____________________
LAWANNA TYNES,
Plaintiff-Appellee,
versus
FLORIDA DEPARTMENT OF JUVENILE JUSTICE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:18-cv-62891-WPD
____________________
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2 Opinion of the Court 21-13245
Before J ILL PRYOR , NEWSOM , and G RANT, Circuit Judges.
GRANT, Circuit Judge:
This appeal results from an all-too-common confusion in
employment discrimination suits: whether the evidentiary
framework set out in McDonnell Douglas is a stand-in for the
ultimate question of liability in Title VII discrimination cases. We
repeat today what our precedents have already made clear: It is
not. Properly understood, McDonnell Douglas is an evidentiary
framework that shifts the burden of production between the
parties to figure out if the true reason for an adverse employment
action was the employee’s race. It is not a set of elements that the
employee must prove—either to survive summary judgment or
prevail at trial.
To be sure, in some cases a lack of success in establishing a
prima facie case will also reflect a lack of success in showing
employment discrimination. But, as both this Court and the
Supreme Court have explained, the ultimate question in a
discrimination case is whether there is enough evidence to show
that the reason for an adverse employment action was illegal
discrimination. The prima facie case in the McDonnell Douglas
framework can help answer that question—but it cannot replace it.
Here, the Florida Department of Juvenile Justice is
distracted by a perceived failure on the part of its former employee,
Lawanna Tynes, to meet her initial burden of production at the
prima facie stage of McDonnell Douglas. But that distraction comes
with a price—a lack of focus on whether Tynes put forward
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21-13245 Opinion of the Court 3
enough evidence to show that she was fired because of racial
discrimination. The jury thought so, and the Department does not
challenge the sufficiency of the evidence for that conclusion. The
verdict thus stands.
The Department also argues that Tynes did not adequately
plead a claim for race discrimination under 42 U.S.C. § 1981, which
requires a different standard of causation than Title VII—and,
perhaps more importantly for the Department’s purposes here,
offers a higher level of potential damages. But again, the
Department sets its sights on the wrong target. Though the district
court’s order expressly relied on its authority to permit
amendments to the pleadings under Rule 15(b)(1) of the Federal
Rules of Civil Procedure, the Department does not even cite Rule
15(b)(1) on appeal. That means the challenge is forfeited, so we
also affirm the district court’s order denying the Department’s
motion for judgment as a matter of law on Tynes’s § 1981 claim.
I.
Tynes was employed by the Florida Department of Juvenile
Justice for sixteen years. At the time of her termination, she was
the superintendent of the Broward Regional Juvenile Detention
Center. The superintendent’s responsibilities include overseeing
the facility’s operations and ensuring that both juvenile detainees
and staff are in a safe environment.
One Sunday, while Tynes was off for medical leave, an
unusually high number of incidents required an officer to call for
back up. The assistant secretary of detention services, Dixie Fosler,
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4 Opinion of the Court 21-13245
followed up by assembling a technical assistance team to review
staffing and personnel issues. After the team’s review was
complete—but before its report was issued—Fosler terminated
Tynes. Tynes had no prior negative performance review or
reprimands. Even so, the Department offered a laundry list of
reasons for the termination: poor performance, negligence,
inefficiency or inability to perform assigned duties, violation of law
or agency rules, conduct unbecoming of a public employee, and
misconduct.
Tynes sued, alleging race and sex discrimination. Her
complaint unambiguously alleged two violations of Title VII of the
Civil Rights Act of 1964, which prohibits employers from
terminating employees because of their race or sex. 42 U.S.C.
§ 2000e-2(a)(1). The complaint also stated that it brought “other
causes of actions [sic] which can be inferred from the facts herein.”
The basis of Tynes’s discrimination case was that similarly
situated white and male employees were treated differently and
that the Department’s stated reasons for her termination were
pretextual. For comparator evidence, Tynes pointed to Joseph
Seeber, a white male, and Daryl Wolf, a white female, who were
both superintendents of juvenile detention centers with incidents
that reflected a lack of control or failure to abide by the
Department’s policies.1 But, unlike Tynes, neither was terminated.
1 At summary judgment, the district court held that Seeber and Wolf were
both appropriate comparators.
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21-13245 Opinion of the Court 5
Far from it—they received only oral reprimands, were allowed to
transfer to different facilities, and were granted multiple
opportunities to comply with various recommendations for
improvement.
As for pretext, Tynes presented evidence of Fosler’s personal
bias against her. Gladys Negron, Tynes’s direct supervisor, testified
that she believed Tynes’s termination was based on Fosler’s
personal feelings rather than professional concerns. She said that
Fosler’s written report “contained several inaccuracies,” and even
characterized the technical assistance team’s efforts as a “search-
and-kill mission” against Tynes. At trial, Fosler faltered in her
testimony; she could not recall the basis for her conclusion that
Tynes had engaged in “conduct unbecoming as a public
employee,” nor could she point to another employee fired without
negative performance reviews or prior reprimands.
The jury returned its verdict in favor of Tynes and made
specific findings in a special verdict form: (1) “race or sex was a
motivating factor”; (2) the Department would not have discharged
Tynes if it had not taken into account her race or sex; and
(3) Tynes’s race was a but-for cause of her termination. The jury
awarded $424,600 in compensatory damages and $500,000 in
damages for emotional pain and mental anguish. The district court
ordered the Department to reinstate Tynes to a similar position—
but not under Fosler’s supervision.
The Department filed a renewed motion for judgment as a
matter of law or, alternatively, for a new trial. It argued that the
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6 Opinion of the Court 21-13245
Department was entitled to judgment on Tynes’s Title VII claims
because she did not present comparators who were “similarly
situated in all material respects” and therefore failed to satisfy her
burden to establish a prima facie case under McDonnell Douglas.
The filing also asserted that Tynes had not properly pleaded her
§ 1981 claim. A § 1981 claim differs in two relevant ways from a
Title VII claim—there is no cap on damages and the causation
standards are higher. 42 U.S.C. § 1981a(b)(3)–(4); see Comcast Corp.
v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1017–19
(2020).
The district court denied the motion on both issues. It
rejected the Department’s Title VII arguments because “the
circumstantial evidence regarding the two comparators was
sufficient to establish the discrimination claims,” and “[c]redibility
was for the jury to decide.” The court also rejected the § 1981
argument, saying that even if Tynes had not properly pleaded that
violation in the first place, Rule 15(b)(1) of the Federal Rules of
Civil Procedure gave it “the discretion to allow an amendment” to
the complaint during the trial.
The Department now appeals the district court’s denial of
its renewed motion for judgment as a matter of law.
II.
Judgment as a matter of law is appropriate when “the facts
and inferences point so overwhelmingly in favor of one party that
reasonable people could not arrive at a contrary verdict.” Brown v.
Alabama Dep’t of Transp., 597 F.3d 1160, 1173 (11th Cir. 2010)
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21-13245 Opinion of the Court 7
(alterations adopted and quotation omitted). We review the denial
of a motion for judgment as a matter of law de novo. Id.
III.
A.
Title VII of the Civil Rights Act of 1964 outlaws
employment discrimination because of “race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-2(a)(1). Likewise, 42 U.S.C.
§ 1981 prohibits employers from intentionally discriminating on
the basis of race in employment contracts. See Johnson v. Ry. Express
Agency, Inc., 421 U.S. 454, 459–60 (1975); Ferrill v. Parker Grp., Inc.,
168 F.3d 468, 472 (11th Cir. 1999). To prove a claim under either
statute, a plaintiff can use direct evidence, circumstantial evidence,
or both. See Jenkins v. Nell, 26 F.4th 1243, 1249 (11th Cir. 2022).
Early on, though, it became clear that when only
circumstantial evidence was available, figuring out whether the
actual reason that an employer fired or disciplined an employee was
illegal discrimination was difficult and “elusive.” Texas Dep't of
Cmty. Affs. v. Burdine, 450 U.S. 248, 255 n.8 (1981). After all, an
employer can generally fire or discipline an employee for “a good
reason, a bad reason, a reason based on erroneous facts, or for no
reason at all,” so long as that action “is not for a discriminatory
reason.’” Flowers v. Troup Cnty. Sch. Dist., 803 F.3d 1327, 1338 (11th
Cir. 2015) (quoting Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d
1181, 1187 (11th Cir. 1984)).
To deal with the difficulties encountered by both parties and
courts, the Supreme Court in McDonnell Douglas set out a burden
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8 Opinion of the Court 21-13245
shifting framework designed to draw out the necessary evidence in
employment discrimination cases. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). It works like this. Step one is for the
plaintiff, who establishes what McDonnell Douglas calls a “prima
facie” case of discrimination when she shows that (1) “she belongs
to a protected class,” (2) “she was subjected to an adverse
employment action,” (3) “she was qualified to perform the job in
question,” and (4) “her employer treated ‘similarly situated’
employees outside her class more favorably.” McDonnell Douglas,
411 U.S. at 802; Lewis v. City of Union City, 918 F.3d 1213, 1220–21
(11th Cir. 2019) (en banc). The last requirement is met when the
plaintiff presents “evidence of a comparator—someone who is
similarly situated in all material respects.” Jenkins, 26 F.4th at 1249
(quotation omitted). The prima facie showing entitles the plaintiff
to a rebuttable presumption of intentional discrimination. U.S.
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714–15 (1983).
The defendant then rebuts that presumption (if it can) by offering
evidence of a valid, non-discriminatory justification for the adverse
employment action. Id. at 714. Once that justification is offered,
the presumption of discrimination falls away and the plaintiff tries
to show not only that the employer’s justification was pretextual,
but that the real reason for the employment action was
discrimination. Id. at 714–15; Burdine, 450 U.S. at 256. This final
question “merges with the plaintiff’s ultimate burden of
persuading the factfinder that she has been the victim of
intentional discrimination.” Lewis, 918 F.3d at 1221 (quoting
Burdine, 450 U.S at 256 (alterations adopted)).
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21-13245 Opinion of the Court 9
McDonnell Douglas, in short, is an evidentiary tool that
functions as a “procedural device, designed only to establish an order
of proof and production.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 521 (1993); see also Burdine, 450 U.S. at 255 n.8; Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 577 (1978). What McDonnell Douglas is
not is an independent standard of liability under either Title VII or
§ 1981. Nor is its first step, the prima facie case—“establishing the
elements of the McDonnell Douglas framework is not, and never was
intended to be, the sine qua non for a plaintiff to survive a summary
judgment motion.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321,
1328 (11th Cir. 2011); see also Brady v. Off. of the Sergeant at Arms, 520
F.3d 490, 493–94 (D.C. Cir. 2008). Often, however, parties (and
sometimes courts) miss this fundamental point and wrongly treat
the prima facie case as a substantive standard of liability.
To be fair, the McDonnell Douglas court’s terminology likely
bears some responsibility for the continuing confusion on this
point. When the Supreme Court uses the term “prima facie case”
in this context, it does so “in a special sense.” Wells v. Colorado Dep’t
of Transp., 325 F.3d 1205, 1223 (10th Cir. 2003) (Hartz, J., writing
separately). The Court itself has explained that although that
phrase may sometimes “describe the plaintiff’s burden of
producing enough evidence to permit the trier of fact to infer the
fact at issue,” within the McDonnell Douglas framework the term
“prima facie case” has a different meaning—it marks “the
establishment of a legally mandatory, rebuttable presumption.”
Burdine, 450 U.S. at 254 n.7 (citing 9 J. Wigmore, Evidence § 2494
(3d ed. 1940)).
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10 Opinion of the Court 21-13245
So, although in other contexts a prima facie case typically
does mean enough evidence for a plaintiff to prevail on a particular
claim, here the meaning is different. Under McDonnell Douglas, a
plaintiff who establishes a prima facie case is entitled to a “legally
mandatory, rebuttable presumption” that the employer
intentionally discriminated against her. Id. What that means is that
once a plaintiff satisfies her prima facie burden, the defendant
“knows that its failure to introduce evidence of a
nondiscriminatory reason will cause judgment to go against it.”
Hicks, 509 U.S. at 510 n.8. The presumption of discrimination
introduced by the prima facie case thus helps narrow things down
and “frame the factual issue” by drawing out an explanation that
the plaintiff can then seek to demonstrate is pretextual. Burdine,
450 U.S. at 255. In this way, the prima facie showing exerts a sort
of “practical coercion” that forces the defendant to “come forward”
with evidence explaining its actions. Hicks, 509 U.S. at 510 n.8, 511.
It also offers a benefit for the defendant employer, who now has a
better idea of what evidence needs to be rebutted. See id.
But once the prima facie case has “fulfilled its role of forcing
the defendant to come forward with some response,” it no longer
has any work to do. Id. at 510–11. Where “the defendant has done
everything that would be required of him if the plaintiff had
properly made out a prima facie case, whether the plaintiff really
did so is no longer relevant.” Aikens, 460 U.S. at 715 (emphasis added).
This is so because the “district court has before it all the evidence it
needs to decide whether the defendant intentionally discriminated
against the plaintiff.” Id. (quotation omitted). So when the
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21-13245 Opinion of the Court 11
defendant employer offers evidence of the reason for its actions
toward the plaintiff, the presumption of discrimination created by
the prima facie case “simply drops out of the picture.” Hicks, 509
U.S. at 511; see also Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1061
(11th Cir. 1994). That is a far cry from serving as a substitute
standard necessary to survive summary judgment.
Another reason for the confusion? A failure in the prima
facie case often also reflects a failure of the overall evidence. Even
though we do not dwell on whether the technical requirements of
the prima facie case are met once the defendant has met its burden
of production, we keep in mind that the questions the plaintiff must
answer to make a prima facie case are relevant to the ultimate
question of discrimination. A plaintiff who fails to prove that she
was a member of a protected class, for example, or that she suffered
an adverse employment action, will be unable to prove that she was
unlawfully discriminated against. See Standard v. A.B.E.L. Servs.,
Inc., 161 F.3d 1318, 1327–28 (11th Cir. 1998); Kidd v. Mando Am.
Corp., 731 F.3d 1196, 1202–04 (11th Cir. 2013). We’ll admit that we
have at times framed that analysis in terms of whether the plaintiff
has established a prima facie case, but the more fundamental
problem with such a failure of evidence is that it means the plaintiff
cannot prove a necessary element for his employment
discrimination case. See, e.g., Kidd, 731 F.3d at 1202–04.
This distinction is important because the components of a
prima facie case are not necessarily coextensive with the evidence
needed to prove an employment discrimination claim. That is why
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12 Opinion of the Court 21-13245
a plaintiff need not plead the elements of a prima facie case to
survive a motion dismiss. Swierkiewicz v. Sorema N. A., 534 U.S. 506,
515 (2002). And it explains why courts in this Circuit do not instruct
juries on the prima facie case or the McDonnell Douglas framework.
See Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322 (11th Cir.
1999).
It is also why “the plaintiff’s failure to produce a comparator
does not necessarily doom the plaintiff’s case.” Smith, 644 F.3d at
1328. Indeed, “the plaintiff will always survive summary judgment
if he presents circumstantial evidence that creates a triable issue
concerning the employer’s discriminatory intent.” Id. at 1328.
That is because McDonnell Douglas is “only one method by which
the plaintiff can prove discrimination by circumstantial evidence.”
Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 n.3 (11th Cir.
2005). A plaintiff who cannot satisfy this framework may still be
able to prove her case with what we have sometimes called a
“convincing mosaic of circumstantial evidence that would allow a
jury to infer intentional discrimination by the decisionmaker.”
Smith, 644 F.3d at 1327–28 (footnote and quotation omitted); see
also Lewis v. City of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019)
(Lewis II).
This rearticulation of the summary judgment standard arose
in large part because of widespread misunderstandings about the
limits of McDonnell Douglas—the same misunderstandings that
persist today. A “convincing mosaic” of circumstantial evidence is
simply enough evidence for a reasonable factfinder to infer
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21-13245 Opinion of the Court 13
intentional discrimination in an employment action—the ultimate
inquiry in a discrimination lawsuit.2 Jenkins, 26 F.4th at 1250. This
approach to analyzing the evidence treats an employment
discrimination suit in the same way we would treat any other
case—jumping directly to the ultimate question of liability and
deciding whether the moving party is entitled to judgment at that
stage of the case. It is no different than the standards we ordinarily
apply in deciding summary judgment and post-trial motions. “If
the plaintiff presents enough circumstantial evidence to raise a
reasonable inference of intentional discrimination, her claim will
survive summary judgment.” Hamilton v. Southland Christian Sch.,
680 F.3d 1316, 1320 (2012).
All that to say, in deciding motions for summary judgment
or judgment as a matter of law, parties already understand that,
when we use what we have called the convincing mosaic standard,
2 A plaintiff proving her case through the convincing mosaic standard may
point to any relevant and admissible evidence. As we have said, “no matter
its form, so long as the circumstantial evidence raises a reasonable inference
that the employer discriminated against the plaintiff, summary judgment is
improper.” Smith, 644 F.3d at 1328. Evidence that is likely to be probative is
“evidence that demonstrates, among other things, (1) suspicious timing,
ambiguous statements, or other information from which discriminatory
intent may be inferred, (2) systematically better treatment of similarly situated
employees, and (3) pretext.” Jenkins, 26 F.4th at 1250 (quotation omitted).
Given the wide scope of available evidence, the convincing mosaic standard
“can be of particular significance when the plaintiff cannot identify a similarly
situated comparator,” as the McDonnell Douglas framework requires. Bailey v.
Metro Ambulance Servs., Inc., 992 F.3d 1265, 1273 n.1 (11th Cir. 2021).
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14 Opinion of the Court 21-13245
we look beyond the prima facie case to consider all relevant
evidence in the record to decide the ultimate question of
intentional discrimination. But parties do not always understand
that we are answering that same question when using the
McDonnell Douglas framework. Under McDonnell Douglas, the
failure to establish a prima facie case is fatal only where it reflects a
failure to put forward enough evidence for a jury to find for the
plaintiff on the ultimate question of discrimination. This may
mean that there was not enough evidence to infer discrimination.
Or it may be that there was no adverse employment action. But
the analysis turns on the substantive claims and evidence in the
case, not the evidentiary framework.
For these reasons, we have repeatedly emphasized that after
a trial we “should not revisit whether the plaintiff established a
prima facie case.” Cleveland v. Home Shopping Network, Inc., 369 F.3d
1189, 1194 (11th Cir. 2004); see also, e.g., Holland v. Gee, 677 F.3d 1047,
1056 (11th Cir. 2012); Collado v. United Parcel Serv., Co., 419 F.3d 1143,
1150 (11th Cir. 2005); Tidwell v. Carter Prods., 135 F.3d 1422, 1426 n.1
(11th Cir. 1998); Richardson v. Leeds Police Dep’t, 71 F.3d 801, 806
(11th Cir. 1995); Carmichael v. Birmingham Saw Works, 738 F.2d 1126,
1129 (11th Cir. 1984). Instead, we ask only one question: whether
there is a sufficient evidentiary basis for the jury to find that the
defendant intentionally discriminated against the plaintiff.
Cleveland, 369 F.3d at 1194.
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21-13245 Opinion of the Court 15
B.
That analysis solves this case. The Department’s only
argument is that the comparator employees that Tynes offered
were not adequate to establish a prima facie case of discrimination
under McDonnell Douglas. That may be true; under our precedent
a comparator employee must be “similarly situated in all material
respects”—a high bar to meet. Lewis, 918 F.3d at 1218. But the
jury’s factual inquiry was whether the Department intentionally
discriminated against Tynes, and its answer was “yes.” The
Department does not contend that the evidence, taken as a whole,
could not support the jury’s verdict. By focusing exclusively on
Tynes’s comparator evidence, the Department has forfeited any
challenge to the ultimate finding of discrimination.
Of course, the strength of Tynes’s comparator evidence is
relevant to the ultimate question of intentional discrimination.
Holland, 677 F.3d at 1056–57. But to the extent that there are
material differences between Tynes and her comparators at this
stage of the case, it is the jury’s role—not ours—to determine how
much weight the comparator evidence should be given. In other
words, it is possible that her comparators were insufficient to
establish a prima facie case yet still relevant to the ultimate question
of intentional discrimination. See Lewis II, 934 F.3d at 1187–88. To
win after trial, the Department would have needed to explain why
the evidence, taken as a whole, was insufficient to support the
jury’s verdict. Because it failed to do so, we affirm the judgment of
the district court denying the Department’s renewed motion for
judgment as a matter of law on the Title VII claims.
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16 Opinion of the Court 21-13245
IV.
The Department also challenges the jury’s verdict on
Tynes’s § 1981 claim, arguing that her complaint did not adequately
plead the § 1981 claim and that she did not prove that race was a
“but-for” cause of her termination.3 The Department, however,
has forfeited both arguments.
The Department is right about one thing—Tynes’s
complaint may not have set out a separate claim under § 1981. See
Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1322–23 (11th
Cir. 2015) (requiring a complaint to set out a different count for
each cause of action or claim for relief ).4 Even so, the district court
held that it had discretion to allow an amendment to the pleadings
during the trial under Rule 15(b)(1). That rule permits the
pleadings to be amended at trial when “a party objects that
evidence is not within the issues raised in the pleadings” so long as
“doing so will aid in presenting the merits and the objecting party
fails to satisfy the court that the evidence would prejudice that
3 In Comcast, the Supreme Court held that but-for causation was required to
prove a § 1981 claim. 140 S. Ct. at 1019.
4 In addition to the Title VII claims, the complaint says it brings “other causes
of actions [sic] which can be inferred from the facts herein.” But it does not
set out a § 1981 claim in its own count; instead, it refers to § 1981 in the
jurisdictional section of the complaint as a federal question presented in the
case. What’s more, each of Tynes’s Title VII counts alleges that she “is a
member of a protected class under § 1981,” and the prayer for relief requests
that the court “[a]djudge and decree that Defendant has violated 42 U.S.C.
§ 1981.”
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21-13245 Opinion of the Court 17
party’s action or defense on the merits.” Fed. R. Civ. P. 15(b)(1).
The district court stated that it found that permitting amendment
would not prejudice the Department.
The Department does not challenge the district court’s
authority under Rule 15. Indeed, at oral argument counsel
expressed a lack of familiarity with that rule. And when “an
appellant fails to challenge properly on appeal one of the grounds
on which the district court based its judgment, he is deemed to
have abandoned any challenge of that ground.” Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). So while it is
not clear whether the district court properly invoked Rule
15(b)(1)—after all, Tynes did not actually move to amend her
complaint—any challenge on that ground is forfeited. See Molinos
Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1352 (11th Cir. 2011);
Green Country Food Mkt., Inc., v. Bottling Grp., LLC, 371 F.3d 1275,
1281 (10th Cir. 2004).
The Department’s second § 1981 argument—that Tynes did
not prove that race was a but-for cause of her termination—is also
forfeited. In its post-trial motion, the Department argued that
because Tynes did not plead a § 1981 claim, her complaint did not
allege that race was a but-for cause. But it did not argue that Tynes
failed to prove that race was a but-for cause.5 “It is well-settled that
5 The clear intention of the Department’s Rule 50 motions was to challenge
the adequacy of the pleadings. The Department may contend (though it did
not do so directly before this Court) that it preserved a proof-based argument
with this statement: “Plaintiff offered no testimony or evidence at trial that her
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18 Opinion of the Court 21-13245
we will generally refuse to consider arguments raised for the first
time on appeal.” Ramirez v. Sec’y, U.S. Dep’t of Transp., 686 F.3d
1239, 1249 (11th Cir. 2012). The Department cannot now
repackage its pleading argument into a claim that Tynes did not
prove an essential element at trial.
* * *
After a full trial on the merits, a defendant cannot
successfully challenge the jury’s verdict by arguing only that the
plaintiff’s comparators were inadequate or that the prima facie case
was otherwise insufficient. Here, the Department was required to
demonstrate why the record evidence could not support the jury’s
verdict and failed to do so. Because the Department also failed to
adequately challenge the grounds upon which the district court
denied its motion with respect to Tynes’s § 1981 claim, the district
court’s order is AFFIRMED.
race was the ‘but-for’ cause of her termination.” In context, both we and the
district court read this as support for the pleading-based argument, but in any
event, such a statement is far too conclusory on its own to preserve the issue
for appeal.
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21-13245 NEWSOM , J., Concurring 1
NEWSOM , Circuit Judge, concurring:
Today’s majority opinion offers an important critique of the
role that McDonnell Douglas’s burden-shifting analysis has come to
play in deciding Title VII cases. In particular, the majority explains
that McDonnell Douglas (1) provides only an “evidentiary
framework” and (2) was never meant to establish “an independent
standard of liability” or specify a “set of elements that the
employee must prove—either to survive summary judgment or
prevail at trial.” Maj. Op. at 2, 9. Unfortunately, as the majority
notes, “parties (and sometimes courts)” often “miss this
fundamental point and wrongly treat” McDonnell Douglas, and in
particular its initial prima-facie-case step, “as a substantive standard
of liability.” Id. at 9. And although this case doesn’t arise on
summary judgment, the majority correctly observes that the
overreading of—and consequent overemphasis on—McDonnell
Douglas has become particularly acute at the Rule 56 stage, where
courts have increasingly taken to treating the test’s prima-facie-
evidence benchmark “as a substitute standard necessary to survive
summary judgment.” Id. at 11; see also id. at 9–12 (detailing the
problems with courts’ applications of McDonnell Douglas at
summary judgment).
Yes, yes, and yes—I completely agree. I’ll confess, though,
that I’ve developed an even deeper skepticism of McDonnell Douglas.
The majority opinion seeks to put courts back on the right path in
their application of McDonnell Douglas; I tend to think we might be
better off on an altogether different path. Here’s what I mean: I’d
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long taken for granted that McDonnell Douglas’s three-step
framework provided the presumptively proper means of deciding
Title VII cases at summary judgment. I’ve changed my mind.
McDonnell Douglas, it now seems to me, not only lacks any real
footing in the text of Rule 56 but, worse, actually obscures the
answer to the only question that matters at summary judgment:
Has the plaintiff shown a “genuine dispute as to any material
fact”—in the typical Title VII case, as to whether her employer
engaged in discrimination based on a protected characteristic.
Instead of McDonnell Douglas—which, to be clear, neither the
Supreme Court nor we have ever said provides the sole mechanism
for adjudicating summary-judgment motions—courts should
employ something like our oft-maligned “convincing mosaic”
standard, which I had always viewed as something of a rogue but
which, upon reflection, much more accurately captures and
implements the summary-judgment standard. For me, it’s quite
the turnabout, so I should explain myself.
I
Title VII of the landmark Civil Rights Act of 1964 broadly
prohibits workplace discrimination. In relevant part, its operative
provision states that—
It shall be an unlawful employment practice for an
employer to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
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such individual’s race, color, religion, sex, or national
origin . . . .
42 U.S.C. § 2000e-2(a)(1). Title VII was (and is) an historic piece of
legislation that tackled (and continues to tackle) one of the
country’s weightiest social problems. Legally speaking, though, it’s
just a statute, no different from hundreds of others. And so, as the
Supreme Court has repeatedly reminded us, the “ordinary rules”
of civil procedure apply to Title VII cases. Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 511 (2002) (“[T]he ordinary rules for assessing
the sufficiency of a complaint apply.”); see also, e.g., U.S. Postal Serv.
Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983) (“[N]one of this
means that trial courts or reviewing courts should treat
discrimination differently from other ultimate questions of fact.”).
Many, if not most, Title VII cases are decided at summary
judgment. The “ordinary rule[]” for evaluating the propriety of
summary judgment, of course, is Federal Rule of Civil Procedure
56:
The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to
judgment as a matter of law.
Fed. R. Civ. P. 56(a). In the mine-run discrimination case, the key
issue is whether the employer engaged in some action, in the
statute’s words, “because of ” an employee’s race, sex, religion, or
other protected characteristic. Accordingly, the fundamental
question at summary judgment is—or should be—whether there is
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a genuine dispute of material fact about that all-important
causation issue.
But not all analytical frameworks hew closely to that
question. Briefly, we assess employment-discrimination cases at
summary judgment using one or more of three approaches. First,
a reviewing court might consider whether the plaintiff has pointed
to direct evidence of discrimination. If the case instead turns on
circumstantial evidence, the court might ask—second—whether the
plaintiff can survive McDonnell Douglas’s burden-shifting analysis
or—third—whether she can assemble what we have called a
“convincing mosaic” of evidence suggesting discrimination, Smith
v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).
In terms of consistency with Rule 56, the direct-evidence
analysis, reserved for cases featuring particularly “blatant” and
overtly discriminatory comments or conduct, see Fernandez v. Trees,
Inc., 961 F.3d 1148, 1156 (11th Cir. 2020), performs well enough.
But direct-evidence cases are increasingly rare, so most Title VII
suits these days turn on circumstantial evidence. Among those,
McDonnell Douglas is clearly the dominant framework, with
“convincing mosaic” trailing along as something of an
afterthought.1 And until recently, that seemed exactly right to
1 So far as I can tell, we have considered the convincing-mosaic test in only
five published Title VII decisions, three of which involved cursory single-
paragraph rejections of a plaintiff’s invocation of it. See, e.g., Smith v. Lockheed-
Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011); Flowers v. Troup Cnty. Sch.
Dist., 803 F.3d 1327, 1335 (11th Cir. 2015); Trask v. Secretary, Dep’t of Veterans
Affs., 822 F.3d 1179, 1193 (11th Cir. 2016), abrogated on other grounds by Babb v.
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me—I had marinated in McDonnell Douglas and its progeny for so
long that I had come to view the convincing-mosaic test as an
interloper, a hack contrived to save cases that might otherwise go
out on summary judgment.
I’ve concluded that I was wrong about that—as in 180°
wrong. Upon reflection, it now seems to me that McDonnell
Douglas is the interloper—it is the judge-concocted doctrine that
obfuscates the critical inquiry. The convincing-mosaic standard, by
contrast—despite its misleadingly florid label—is basically just Rule
56 in operation. Quite unlike McDonnell Douglas, it actually asks the
key question: Does the “record, viewed in a light most favorable
to the plaintiff, present[] a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination
by the decisionmaker”? Smith, 644 F.3d at 1328 (internal quotations
and footnote omitted). Strip away the grandiloquence—after all,
“convincing mosaic of circumstantial evidence” just means
“evidence”—and that is exactly Rule 56’s summary-judgment
standard.
In the discussion that follows, I’ll explain briefly why I’ve
come to believe (1) that McDonnell Douglas is the wrong framework
to apply in deciding Title VII cases at summary judgment and (2)
that our convincing-mosaic standard—which I’d rebrand slightly—
Wilkie, 140 S. Ct. 1168 (2020); Lewis v. City of Union City, 934 F.3d 1169, 1185
(11th Cir. 2019) (on remand); Bailey v. Metro Ambulance Servs., Inc., 992 F.3d
1265, 1273 n.2 (11th Cir. 2021).
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is the right one. I’ll also try to anticipate and respond to a few
objections.
II
To start, why the loss of faith in McDonnell Douglas? In short,
I fear that it doesn’t reliably get us to the result that Rule 56
requires. See also Maj. Op. at 11 (noting that “the components of a
prima facie case are not necessarily coextensive with the evidence
needed to prove an employment discrimination claim”). And in
retrospect, that shouldn’t be particularly surprising, because
McDonnell Douglas’s reticulated, multi-step framework forces
courts to ask and answer a series of questions that only peripherally
relate to the one that Rule 56 poses: Has the plaintiff presented “a
genuine issue as to any material fact”—in the typical Title VII case,
about her employer’s discriminatory intent? Let me unpack my
concern, in three parts.
First, as a threshold matter, McDonnell Douglas seems (in
retrospect) awfully made up. Here’s how the Supreme Court has
described its handiwork:
In McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), we set forth the basic allocation of burdens
and order of presentation of proof in a Title VII case
alleging discriminatory treatment. First, the plaintiff
has the burden of proving by the preponderance of
the evidence a prima facie case of discrimination.
Second, if the plaintiff succeeds in proving the prima
facie case, the burden shifts to the defendant “to
articulate some legitimate, nondiscriminatory reason
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for the employee’s rejection.” Third, should the
defendant carry this burden, the plaintiff must then
have an opportunity to prove by a preponderance of
the evidence that the legitimate reasons offered by
the defendant were not its true reasons, but were a
pretext for discrimination.
Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 252–53 (1981)
(internal citations and footnote omitted). There’s certainly no
textual warrant in Title VII or the Federal Rules for so elaborate a
scheme, and so far as I know, no one has ever even sought to justify
it as rooted in either. Perhaps a product of its time, the whole thing
is quite legislative, quite Miranda-esque—“set forth,” to use the
Supreme Court’s own words. See also Maj. Op. at 7–8 (observing
that McDonnell Douglas “set out” the burden-shifting framework).
And for me, the framework’s made-up-ed-ness is a flashing red
light—prima facie evidence, if you will, that something is amiss.
Cf. Club Madonna Inc. v. City of Miami Beach, 42 F.4th 1231, 1261 (11th
Cir. 2022) (Newsom, J., concurring) (“[U]nelected, unaccountable
federal judges shouldn’t make stuff up.”).
Second, whatever it was that the Supreme Court initially
conjured, it seems to have taken on a life of its own. Perhaps most
jarringly, McDonnell Douglas’s burden-shifting framework has
become the presumptive means of resolving Title VII cases at
summary judgment—despite the facts (1) that McDonnell Douglas
itself arose not on summary judgment but out of a bench trial, see
Green v. McDonnell Douglas Corp., 299 F. Supp. 1100, 1102 (E.D. Mo.
1969), and (2) that, so far as I can tell, the Supreme Court has
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specifically addressed McDonnell Douglas’s application to Title VII
cases at summary judgment only once, and in that decision held
that it didn’t apply, see Trans World Airlines, Inc. v. Thurston, 469 U.S.
111, 118–19 (1985).2 Even beyond that, despite the Supreme
Court’s occasional reminders that McDonnell Douglas’s “procedural
device” was intended “only to establish an order of proof and
production,” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 521 (1993),3
lower courts have become progressively obsessed with its minutiae,
allowing it to drive substantive outcomes. The framework’s
constituent details have grown increasingly intricate and code-like,
as courts have taken to forcing a holistic evidentiary question—
2 Ironically, resolving cases at summary judgment seems to be McDonnell
Douglas’s sole remaining office. The Supreme Court has clarified that its
burden-shifting analysis is inapplicable both at the pleading stage, see
Swierkiewicz, 534 U.S. at 508, and in deciding post-trial motions, see Aikens, 460
U.S. at 715, and most courts of appeals have excised references to McDonnell
Douglas’s framework from their pattern jury instructions, see Timothy M.
Tymkovich, The Problem with Pretext, 85 Denv. U. L. Rev. 503, 528 & nn.189–
91 (2008) (collecting cases).
To be fair, the Court has utilized McDonnell Douglas to evaluate claims
under other statutes at summary judgment. None of those decisions, though,
has squarely addressed McDonnell Douglas’s consistency (or inconsistency) with
Rule 56. See, e.g., Babb v. Wilkie, 140 S. Ct. 1168, 1172 (2020); Young v. United
Parcel Serv., Inc., 575 U.S. 206, 231 (2015); Raytheon Co. v. Hernandez, 540 U.S.
44, 51–52 (2003); O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312
(1996).
3 See also Burdine, 450 U.S. at 255 n.8 (observing that the McDonnell Douglas
framework was designed merely to help the parties progressively “sharpen the
inquiry into the elusive factual question of intentional discrimination”).
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whether all the evidence, viewed in the light most favorable to the
plaintiff, creates a genuine factual dispute—into a collection of
distinct doctrinal pigeonholes. For instance, we have explained—
and we’re hardly alone—that McDonnell Douglas’s first stage, the
prima-facie case, further entails a “four-step test,” one step of
which requires the plaintiff to show that she was treated differently
from a similarly situated “comparator.” Lewis v. City of Union City,
918 F.3d 1213, 1220–22 (11th Cir. 2019) (en banc). We’ve then
treated these requirements as a series of standalone, case-
dispositive elements—boxes to be checked—rather than simply
asking the controlling question whether the facts give rise to a
triable issue of discrimination. In so doing, we’ve mistakenly
allowed the tool to eclipse (and displace) the rule.4
Finally, and perhaps worst of all, it now strikes me that the
McDonnell Douglas three-step—particularly as supplemented by the
first step’s constituent four-step—obscures the actual Title VII
inquiry, especially at summary judgment. I’ll readily confess that
others have beaten me to this conclusion, but they make for pretty
good company. For instance, while a judge on the D.C. Circuit,
4 See Sandra F. Sperino, Rethinking Discrimination Law, 110 Mich. L. Rev. 69, 71
(2011) (“[T]he key question in modern discrimination cases is often whether
the plaintiff can cram his or her facts into a recognized structure and not
whether the facts establish discrimination.”); see also Deborah A. Widiss,
Proving Discrimination by the Text, 106 Minn. L. Rev. 353, 374–75 (2021) (“In
practice, however, the causation standard employed is less important than
whether a plaintiff can successfully squeeze the evidence into an arcane and
complicated body of judge-made law . . . .”).
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Justice Kavanaugh described the fixation on the plaintiff’s prima
facie case as “a largely unnecessary sideshow” that “has not
benefited employees or employers,” has not “simplified or
expedited court proceedings,” and, in fact, “has done exactly the
opposite, spawning enormous confusion and wasting litigant and
judicial resources.” Brady v. Office of Sergeant at Arms, 520 F.3d 490,
494 (D.C. Cir. 2008). Worse, he explained, the McDonnell Douglas
framework isn’t just wasteful, it is potentially misleading in that it
entices reviewing courts to focus on non-core issues: At summary
judgment, the prima facie case is “almost always irrelevant” and
“usually [a] misplaced” inquiry—because once the defendant offers
an explanation for its decision, “whether the plaintiff really” made
out a prima facie case no longer matters. Id. at 493–94 (quoting
Aikens, 460 U.S. at 715). Rather, then-Judge Kavanaugh continued,
once the defendant explains itself, “the district court must resolve
one central question: Has the employee produced sufficient
evidence for a reasonable jury to find that . . . the employer
intentionally discriminated against the employee on the basis of
race, color, religion, sex, or national origin?” Id. at 494. That, of
course, is the Rule 56 question—shorn of all its McDonnell Douglas
prophylaxis.5
5 One clarification: While the prima-facie-case question is undoubtedly
“irrelevant” as a formal matter following an employer’s summary-judgment
motion—at that point, the employer having explained itself, the focus turns to
the ultimate question—that’s not to say that the sort of proof that might
inform a plaintiff’s prima facie showing is irrelevant as an evidentiary matter.
As the majority opinion observes, “the questions the plaintiff must answer to
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To be clear, Justice Kavanaugh is hardly alone. Justice
Gorsuch made similar observations during his tenure on the Tenth
Circuit. Using the very same descriptor that Justice Kavanaugh
had, he explained that McDonnell Douglas’s staged inquiries
“sometimes prove a sideshow,” Hinds v. Sprint/United Mgmt. Co.,
523 F.3d 1187, 1202 n.12 (10th Cir. 2008), that the framework itself
“has proven of limited value,” Walton v. Powell, 821 F.3d 1204, 1210
(10th Cir. 2016), and that courts too often get bogged down
“engag[ing] in the business of trying to police the often fine line
between” when McDonnell Douglas does and doesn’t apply, id. at
1211.6
make a prima facie case are relevant to the ultimate question of
discrimination”—whether she was a member of a protected class, whether she
suffered an adverse employment decision, how her colleagues were treated,
etc. Maj. Op. at 11. So it may well be that a plaintiff who lacks the evidence
necessary to make out a prima facie case should lose at summary judgment.
Importantly, though, she shouldn’t lose because she has failed to dot her Is
and cross her Ts under McDonnell Douglas, but rather because she has failed to
proffer evidence that gives rise to a genuine issue of material fact concerning
whether her employer engaged in unlawful discrimination. Cf. also id. at 11
(“A failure in the prima facie case often also reflects a failure of the overall
evidence.”).
6 Others have voiced similar complaints. Judge Easterbrook has described Title
VII summary-judgment cases generally as implicating a “rat’s nest of surplus
‘tests.’” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 766 (7th Cir. 2016). Judge
Hartz has observed that the McDonnell Douglas framework, in particular, “only
creates confusion and distracts courts from ‘the ultimate question of
discrimination.’” Wells v. Colorado Dep’t of Transp., 325 F.3d 1205, 1221 (10th
Cir. 2003) (Hartz, J., concurring). Judge Wood has lamented the “snarls and
knots that the current methodologies used in discrimination cases of all kinds
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* * *
So, what’s my takeaway regarding McDonnell Douglas? From
a case that didn’t even arise on summary judgment has emerged a
purported “procedural device” that, in day-to-day operation,
disregards the duly promulgated rules of summary-judgment
procedure, that overrides the substance of Title VII, and whose
multi-step burden-shifting formula obscures the decisive question:
Does the summary-judgment record reveal a genuine dispute of
material fact about whether an employer discriminated against its
employee “because of ” a protected characteristic?
III
So, as it turns out, there’s plenty not to like about McDonnell
Douglas as a summary-judgment tool. And what of the convincing-
mosaic standard, which I’ve confessed to having long dismissed as
a secondary corollary of sorts or, worse, a manipulable
workaround? Turns out there’s a lot to like.
have inflicted on courts and litigants alike” and expressed her view that
McDonnell Douglas’s successive inquiries have “lost their utility.” Coleman v.
Donahoe, 667 F.3d 835, 863 (7th Cir. 2012) (Wood, J., concurring). And Judge
Tymkovich, training his critique on McDonnell Douglas’s third step, has
complained that the “focus on pretext has shifted the emphasis of an
employment discrimination case away from the ultimate issue of whether the
employer discriminated against the complaining employee.” Tymkovich,
supra note 2, at 505.
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McDonnell Douglas, it now seems to me, leads us away
from—or at the very least is orthogonal to—Rule 56’s north star.
By contrast, the convincing-mosaic standard points, even if a little
clumsily, right at it. Here’s what we said in Smith:
[T]he plaintiff will always survive summary judgment
if he presents circumstantial evidence that creates a
triable issue concerning the employer’s
discriminatory intent. A triable issue of fact exists if
the record, viewed in a light most favorable to the
plaintiff, presents a convincing mosaic of
circumstantial evidence that would allow a jury to
infer intentional discrimination by the decisionmaker.
644 F.3d at 1328 (internal quotation marks, citations, and footnote
omitted). Stripped of the rhetorical flourish—the superfluous
“convincing mosaic of ” preface—that is, in essence, just a
restatement of Rule 56’s summary-judgment standard. No bells,
no whistles—just reasonable inferences and triable facts.
What accounts, then, for the convincing-mosaic standard’s
failure to launch? Well, inertia for starters. By the time the
convincing-mosaic option came along, at least as a stand-alone test,
parties, courts, and commentators had been debating and applying
McDonnell Douglas for decades. Separately, I think the convincing-
mosaic framework suffers from a branding problem of sorts, of
which its rhetoric is a big part. The informal moniker—
“convincing mosaic”—just sounds contrived, and thus sends
formalists like me into a dither. It’s also a little misleading:
Satisfying the test requires neither “convincing” a reviewing court
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nor presenting enough evidence to compose a “mosaic.” Summary
judgment turns on the existence of a genuine factual dispute;
courts deciding summary-judgment motions don’t weigh
evidence, and they don’t decide (let alone announce) whether
they’re convinced. And a mosaic—in its truest sense a collection—
isn’t necessary to defeat summary judgment; a single item of
evidence can at least theoretically suffice.
In any event, as between the two current contestants, it now
strikes me that the convincing-mosaic standard—which I’d be
inclined to re-brand as, perhaps, just the “Rule 56” standard, to
denude it of its unnecessary ornamentation—comes much closer
to capturing the essence of summary judgment than does
McDonnell Douglas.
IV
Let me try, in closing, to anticipate and address a few likely
objections.
A
First, does any of this really matter? I think it does. We
shouldn’t perpetuate the existing regime by dint of its sheer
existence. We should strive to get the cases right according to the
governing law. And for present purposes, the “governing law”
comprises (1) Title VII’s prohibition on employment
discrimination perpetrated “because of ” an employee’s protected
characteristics, 42 U.S.C. § 2000e-2(a)(1), and (2) Rule 56’s focus on
the existence of a “genuine dispute” about that causation issue, see
Fed. R. Civ. P. 56(a). For reasons I’ve tried to explain, McDonnell
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Douglas is at best only tangentially directed to those issues; the
convincing-mosaic standard—or something like it—is much more
immediately so.
Moreover, I fear that our increasingly rigid application of
McDonnell Douglas may actually be causing us to get cases wrong—
in particular, to reject cases at summary judgment that should,
under a straightforward application of Rule 56, probably proceed
to trial. A plaintiff who can marshal strong circumstantial evidence
of discrimination but who, for whatever reason, can’t check all of
the McDonnell-Douglas-related doctrinal boxes—for instance,
because she can’t quite show that her proffered comparator is
sufficiently “similarly situated,” see supra at 9—may well lose at
summary judgment, whereas a plaintiff who has a slightly better
comparator but little other evidence of discrimination might
survive. Especially in light of Rule 56’s plain language—which
focuses on the existence of a “genuine dispute as to any material
fact,” Fed. R. Civ. P. 56(a)—that seems a little topsy-turvy.
B
Second, wouldn’t a wholehearted embrace of the
convincing-mosaic framework result in more cases going to trial
and thereby overburden already busy district courts? Well, maybe.
To the extent that McDonnell Douglas’s judge-created elements and
sub-elements are currently causing courts to grant summary
judgment in cases where, in Rule 56 terms, a genuine dispute exists,
then yes, ditching them in favor of something that looks more like
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the convincing-mosaic standard would lead to more trials.7 But
inasmuch as that’s a problem, courts shouldn’t manufacture or
jerry-rig doctrine to fix it. I’ve never thought that judges should
decide cases in an effort to drive good outcomes or avoid bad ones,
and now’s not the time to start. For good or ill, the facts are (1) that
Title VII gives plaintiffs a right to a jury trial in appropriate
circumstances, see 42 U.S.C. § 1981a(c), and (2) that Rule 56
forestalls jury trials only where there is “no genuine dispute as to
any material fact”—here, as to the employer’s causal motivation.
Some cases will warrant trial under Rule 56’s standard, some won’t.
But neither Title VII nor the Federal Rules make an exception for
claims that, while legally viable, might prove time- and labor-
intensive.
C
Finally, isn’t the idea of scrapping McDonnell Douglas in favor
of something like the convincing-mosaic standard pretty radical?
Not particularly. After all, we’ve been using (or at least incanting)
7 Reasonable minds can differ about how many cases are wrongly decided
because of McDonnell Douglas. Many of our early cases doubted whether an
employer’s motive is susceptible to summary judgment at all. See Chapman v.
AI Transp., 229 F.3d 1012, 1025 (11th Cir. 2000) (en banc) (collecting cases).
When we held that it is, we did so on the ground that “the summary judgment
rule applies in job discrimination cases just as in other cases” and, thus, that
“[n]o thumb is to be placed on either side of the scale.” Id. at 1026. But the
questions (1) whether the summary-judgment procedure applies to Title VII
cases—of course it does—and (2) how many cases it will weed out are, to my
mind, different.
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the convincing-mosaic standard as an alternative to McDonnell
Douglas for more than a decade now, and other courts have
similarly renounced any slavish devotion to McDonnell Douglas’s
rigid three-step analysis.
Interestingly, we borrowed the phrase “convincing mosaic”
from the Seventh Circuit. See Smith, 644 F.3d at 1328 (quoting
Silverman v. Board of Educ. of Chi., 637 F.3d 729, 734 (7th Cir. 2011)).
That court has since (and wisely) jettisoned the “convincing
mosaic” label, but not its substance. Instead, it has adopted what it
calls a “direct method”—in effect, a merger of our direct-evidence
and convincing-mosaic frameworks—which permits an employee
to oppose her employer’s summary-judgment motion using any
evidence, whether technically direct or circumstantial, so long as it
creates a triable issue of discrimination. See Sylvester v. SOS Child.’s
Vills. Ill., Inc., 453 F.3d 900, 902–03 (7th Cir. 2006). The court has
described its approach in the following terms, which, to me, sound
pretty convincing-mosaic-ish:
[The] legal standard . . . is simply whether the
evidence would permit a reasonable factfinder to
conclude that the plaintiff’s race, ethnicity, sex,
religion, or other proscribed factor caused the
discharge or other adverse employment action.
Evidence must be considered as a whole, rather than
asking whether any particular piece of evidence
proves the case by itself—or whether just the “direct”
evidence does so, or the “indirect” evidence.
Evidence is evidence. Relevant evidence must be
considered and irrelevant evidence disregarded, but
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no evidence should be treated differently from other
evidence because it can be labeled “direct” or
“indirect.”
Ortiz v. Werner Enters. Inc., 834 F.3d 760, 765 (7th Cir. 2016).
For its part, the D.C. Circuit has likewise taken steps to
reorient McDonnell Douglas toward the ultimate question whether
the plaintiff has presented a genuine factual dispute about
intentional discrimination. By the time the employer files a
summary-judgment motion, that court has explained, it “ordinarily
will have asserted a legitimate, non-discriminatory reason for the
challenged decision” at step two of McDonnell Douglas’s three-step
analysis. Brady, 520 F.3d at 493. At that point, the D.C. Circuit
continued, “whether the employee actually made out a prima facie
case is ‘no longer relevant’ and thus ‘disappear[s]’ and ‘drops out of
the picture.’” Id. (quoting Hicks, 509 U.S. at 510–11, and Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)). Rather,
the reviewing court then “has before it all the evidence it needs to
decide” the ultimate question—namely, “whether the defendant
intentionally discriminated against the plaintiff.” Id. at 494
(quoting Aikens, 460 U.S. at 715). So, to avoid any “lingering
uncertainty,” the D.C. Circuit concluded by emphasizing that in the
mine-run summary-judgment case, where the employer has
offered a non-discriminatory reason for its action, a reviewing
court “should not . . . decide whether the plaintiff actually made out
a prima facie case” under McDonnell Douglas but, rather, should
resolve the “central question” whether the “employee [has]
produced sufficient evidence for a reasonable jury to find” that “the
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employer intentionally discriminated against the employee on the
basis of race, color, religion, sex, or national origin?” Id.
All of which is simply to say: It’s not quite as heretical as I
once assumed to question whether McDonnell Douglas is the—or
even an—appropriate means of deciding Title VII cases at
summary judgment. And it wouldn’t be quite as radical as it once
seemed to shift the focus away from McDonnell Douglas’s judge-
made formulation and toward Rule 56’s plain language.8
8 Bulky footnote alert: At this point, inside baseballers may be asking, “What
about the en banc decision in Lewis, which you wrote?” See Lewis v. City of
Union City, 918 F.3d 1213 (11th Cir. 2019) (en banc). Fair question. To be
clear, though, I needn’t renounce Lewis. For what it set out to do—as we
explained there, “to clarify the proper standard for comparator evidence in
intentional-discrimination cases” brought under McDonnell Douglas’s burden-
shifting regime, id. at 1220—I continue to believe that Lewis gave the right
answer. It’s just that I’ve come to doubt that McDonnell Douglas—and our
downstream application of it—asks the correct questions.
In Lewis, we noted that a Title VII plaintiff can respond to her
employer’s summary-judgment motion in “a variety of ways”—“one of
which,” we said, “is by navigating the now-familiar three-part burden-shifting
framework established by the Supreme Court in McDonnell Douglas,” whose
first part, of course, requires the plaintiff to make out a prima facie case of
discrimination. Id. at 1217. We further noted the Supreme Court’s repeated
directive that one of the ways—seemingly, the presumptive way—that the
plaintiff can demonstrate a prima facie case is by satisfying a constituent four-
step test, one prong of which requires her to show “that she was treated
differently from another ‘similarly situated’ individual—in court-speak, a
‘comparator.’” Id. (quoting Burdine, 450 U.S. at 258–59). Faced with an
entrenched intra-circuit split, we granted en banc rehearing to answer a
discrete question about the proper implementation of that McDonnell-Douglas-
related “comparator” element: “What standard does the phrase ‘similarly
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20 NEWSOM , J., Concurring 21-13245
V
“Wisdom too often never comes, and so one ought not to
reject it merely because it comes late.” Henslee v. Union Planters
Nat’l Bank & Tr. Co., 335 U.S. 595, 600 (1949) (Frankfurter, J.,
dissenting). For a while now, I’ve uncritically accepted the
McDonnell Douglas framework as the proper means of resolving
Title VII cases on summary judgment, and I’ve long scorned the
convincing-mosaic standard as a judge-made bypass. I repent. I
had it backwards. Whereas McDonnell Douglas masks and muddles
the critical Rule 56 inquiry, “convincing mosaic,” for all intents and
purposes, is the critical Rule 56 inquiry. On a going-forward basis,
situated’ impose on the plaintiff: (1) ‘same or similar,’ (2) ‘nearly identical,’ or
(3) some other standard?” Id. at 1218. Our response: A Title VII plaintiff must
show that her proposed comparators are “similarly situated in all material
respects.” Id. at 1224–29.
I stand by Lewis’s answer to that operational question—one of the
many such questions that lower courts, including ours, have taken to asking
in the wake of McDonnell Douglas. I will confess, though, that the question that
we confronted and answered in Lewis now strikes me as awfully weedsy—
indicative, I worry, of an analysis that (to continue the botanical metaphor)
risks missing the forest for the trees. Rather than getting tangled up in prima
facie cases, four-step tests, similarly situated comparators, and the like, I’ve
come to believe that we’d be better off cutting straight to the Rule 56 chase:
Has the plaintiff presented evidence that gives rise to a genuine factual dispute
about whether her employer engaged in intentional discrimination? To my
surprise, the convincing-mosaic standard—shorn of its frills—does pretty
much exactly that. (Interestingly, and perhaps tellingly, on remand from our
en banc decision, Lewis won—i.e., survived summary judgment—on
convincing-mosaic grounds. See Lewis, 934 F.3d at1186–90 (on remand)).
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therefore, I would promote the convincing-mosaic standard to
primary status and, to the extent consistent with Supreme Court
precedent, relegate McDonnell Douglas to the sidelines.
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