Julia McCreight v. Auburn Bank

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12577

____________________

JULIA MCCREIGHT,

REBECCA WESTER,

Plaintiffs-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 “race, color,

religion, sex, or national origin.” 42 U.S.C. § 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 “convincing mosaic” 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 Dep’t of Juv. Just., 88

F.4th 939, 943–47 (11th Cir. 2023); Ossmann v. Meredith Corp., 82

F.4th 1007, 1020 (11th Cir. 2023); Yelling v. St. Vincent’s 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

different things. A sex-plus claim is based on one kind of

discrimination—sex discrimination—targeting 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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Mixed-motive discrimination, on the other hand, allows for

liability when an employment decision motivated by a legitimate

reason—usually poor work performance—is also infected by an

illegitimate reason—illegal 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 “sex-plus” 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 offers notice to defendants about

what to defend, and to courts about what to decide.

Plaintiff Julia McCreight raised a sex-plus discrimination

claim, but she did not offer enough evidence for a reasonable jury

to conclude that her boss fired her because of her sex. We therefore

affirm summary judgment for the defendants on the sex

discrimination claim. McCreight and co-plaintiff Rebecca Wester’s

age discrimination claims fail for the same reason—neither woman

offered enough evidence for a reasonable jury to conclude that she

was fired because of her age. And because both women failed to

offer 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 “seller servicer” for Fannie Mae, meaning that it sells loans to

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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 AuburnBank’s 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

qualifications. To ensure that these conditions are met,

AuburnBank requires a number of steps, starting with

prequalification. This duty falls to mortgage loan originators, who

prequalify applicants based on unverified information that would-

be borrowers provide. If everything looks appropriate, the bank

will send a confirmation letter informing the applicant that she is

prequalified. But mortgage loan originators are not authorized to

formally approve any applicants for a loan—that responsibility falls

to underwriters, who independently vet applicants. If an

underwriter concludes that a prospective borrower is unqualified

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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borrowers need to satisfy other conditions before closing. This

way, the bank can pull the loan if the applicant’s financial picture

changes right before the closing date.

Each part of this process can spell disaster for a bank’s

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. AuburnBank’s disciplinary

policy reflected 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 offense.

McCreight and Wester were fired 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 fired. They

were ultimately fired by Michael King, who had been hired as the

mortgage department manager to grow and revitalize the

department.

As a mortgage loan originator, McCreight’s job duties

included originating loans for the bank and prequalifying

applicants based on the (unverified) information they provided.

But in the incident that precipitated her firing, 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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denied by the underwriter who later reviewed it. But because of

McCreight’s 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 first time McCreight had committed a

serious error. For one, she created a potential conflict of interest

by being inappropriately involved in one of her family member’s

loans. She also attempted to change an already locked-in interest

rate for a different borrower; had she succeeded, the loan would

have been unsellable to Fannie Mae. Her unauthorized approval

of the unqualified borrower was the “final straw” for King.

Like McCreight, Wester was fired 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

office 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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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 offers no explanation for not doing it herself before her

procedure. And this was not the first 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 King’s approval Wester was

fired by one of her supervisors.

McCreight and Wester see their terminations differently.

Both contend that AuburnBank and King fired 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 five men—all within two years.

Meanwhile, no men were fired or transferred. And according to

McCreight, King “said he had come to clean house” and wanted to

“hire younger MLOs”; he once added that McCreight had “been

here forever.”

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 AuburnBank’s 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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with King, but only about McCreight’s complaints about him

spreading rumors; Carrington says she did not share McCreight’s

complaints of discrimination, and she denies sharing any of

Wester’s 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 McCreight’s Title VII sex-plus-age discrimination claim.

II.

We review de novo a district court’s grant of summary

judgment, “viewing all evidence and drawing all reasonable factual

inferences in favor of the nonmoving party.” 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 “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). “A genuine issue of material

fact exists when the evidence is such that a reasonable jury could

return a verdict for the non-moving party.” Qui v. Thomas Cnty.

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Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016) (alteration adopted

and quotation omitted).

III.

We begin by addressing McCreight’s sex discrimination

claim. McCreight says that because she has articulated a sex-plus

claim, it should be analyzed under a “mixed-motive” theory. This

is incorrect. To start, a sex-plus claim is not, as McCreight seems

to think, a claim based on “more than one type of discrimination

causing the adverse action.” It is a claim based on one kind of

discrimination—sex discrimination—within a particular subgroup

of people.

What’s 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. § 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

plaintiff can bring, and mixed-motive is a theory of causation that

a plaintiff 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 complaint’s

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 level—

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not at summary judgment and not at any time. We therefore

affirm 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. § 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 differently than

employees of the other sex.

Also cognizable under Title VII are “sex-plus” discrimination

claims. Jefferies v. Harris Cnty. Cmty. Action Ass’n, 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) differently. Id. at 1033–34. The “plus” 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 “escape violations of Title VII

2 Decisions of the United States Court of Appeals for the Fifth Circuit “as that

court existed on September 30, 1981, handed down by that court prior to the

close of business on that date” 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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by adding nonsex factors in creating discriminatory policies.”

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 sex—Title VII comes

into play even when only a subgroup of employees is treated

differently based on their sex.

This conclusion is not a new one. We have said that

employers “may not apply different standards of treatment to

women with young children, to married women, or to women

who are single and pregnant.” Jefferies, 615 F.2d at 1034. The same

goes for sex discrimination claims when an employer treats black

female employees differently 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

defined by the “plus” 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 factor’s work is in defining the

subgroup in which the alleged sex discrimination occurred.4

3 Jefferies held that an employer violated Title VII by discriminating against

black women—the 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. Affinity Gaming

Black Hawk, LLC, 966 F.3d 1038, 1048–49 (10th Cir. 2020). But though such

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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 offers plaintiffs two theories of discrimination:

single-motive and mixed-motive. Under a single-motive theory, a

plaintiff “must prove that the ‘true reason’ for an adverse action was

illegal” bias. Qui, 814 F.3d at 1235, 1237. In other words, we ask

whether illegal discrimination was the but-for cause of the

employee’s firing, with the protected trait having “a determinative

influence” in the employer’s decision. Hazen Paper Co. v. Biins, 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 firing.

Qui, 814 F.3d at 1235, 1239. Under that theory the plaintiff argues

that a “discriminatory input,” like sex bias, factored into an

employer’s decision, even if other reasons justified 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 plaintiff 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 differently based on sex is the reason.

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played a part in the decision—not that it had a dispositive role. See

Qui, 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 offer alternative

theories of causation for proving discrimination under Title VII.

Id. And underlying both theories is the same summary judgment

standard: whether a plaintiff has provided sufficient evidence for a

reasonable jury to infer intentional discrimination. See Tynes, 88

F.4th at 943–47; Qui, 814 F.3d at 1239–40.

Both theories also offer the same potential remedies, which

include compensatory and punitive damages plus back pay and

injunctive relief. 42 U.S.C. § 1981a(a)(1). But there is one important

difference: if a plaintiff 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. Qui, 814 F.3d at 1242; 42 U.S.C. § 2000e-

5(g)(2)(B). This affirmative defense is known as the mixed-motive

or same-decision defense. Desert Palace, 539 U.S. at 94–95; Qui,

814 F.3d at 1242.

While the same-decision defense restricts the plaintiff’s

remedies, it does not absolve the employer from liability—

declaratory and injunctive relief, as well as attorney’s fees, remain

available. Desert Palace, 539 U.S. at 94–95; 42 U.S.C. § 2000e-

5(g)(2)(B). And if an employer fails to assert, and prove, a same-

decision defense, a plaintiff prevailing under a mixed-motive theory

is entitled to recover the same damages and relief as would be

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available under a single-motive theory. 42 U.S.C. §§ 2000e-2(a),

2000e-2(m), 1981a(a)(1). This statutory framework—the single-

motive theory, the mixed-motive theory, and the same-decision

defense—confronts the reality that discrimination based on

protected characteristics is illegal whether the employee is top-

notch or not. It also evinces Congress’s intention to penalize

employment discrimination whenever it occurs, without also tying

the hands of employers who need to effectively manage their

businesses.

That both single- and mixed-motive theories of liability are

available does not mean a plaintiff is required to affirmatively 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, 11–12 (2014). The single-or-mixed-motive question

illustrates why; discovery is often necessary for a plaintiff 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. §§ 2000e-2(m), 2000e-5(g)(2)(B). Perhaps an employee

will learn that, although discrimination played a role in her firing,

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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That does not mean, however, that plaintiffs can simply

allege facts and let the district court figure things out from there.

We “rely on the parties to frame the issues” by “advancing the facts

and arguments entitling them to relief.” United States v. Campbell,

26 F.4th 860, 872 (11th Cir. 2022) (en banc) (quotations omitted).

So a plaintiff wishing to “prevail on a particular theory of liability”

must “present that argument to the district court.” 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 “prejudice the other party in maintaining a defense upon the

merits.” 5 Charles Alan Wright & Arthur R. Miller, Federal Practice

& Procedure § 1219 (4th ed. 2023). But without such prejudice, a

theory of liability raised by a plaintiff cannot be rejected simply

because she failed to specifically 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,

1259–60 (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 defendants—and

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wasteful on top of that—to let plaintiffs on appeal spring new

theories of liability that were not considered or defended against at

summary judgment. 6 This requirement also protects plaintiffs

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 “intersectional” claim, which means it is a mixed-

motive claim. And for mixed-motive claims, she says, our

evidentiary standard is lower, requiring only “bits and pieces” of

evidence that could lead one to conclude that she was fired because

of her age and sex.

Respectfully, that is not how this works. We start with

McCreight’s incorrect assumption that a sex-plus claim is the same

thing as a mixed-motive claim. As we have explained, mixed-

motive is a theory—not 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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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 McCreight’s 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 different concept—a 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 define the contours of her claim—

and she chose single-motive. Though she cited a mixed-motive

case, Qui, that was not enough. See generally Qui, 814 F.3d 1227.

McCreight never argued, even in the alternative, that a mix of

legitimate and illegitimate motives played a role in her firing;

instead, she claimed that AuburnBank fired her because of her

status as an older woman, and that any other reason the bank

offered was pretextual. That is a classic single-motive approach.

So why did she cite Qui? Perhaps because, as the district

court suggested, she wrongly perceives the mixed-motive test as

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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 claims—single-

motive as well as mixed-motive—are ultimately decided according

to the same Rule 56 summary judgment standard. And that

standard asks whether the employee has offered enough

“circumstantial evidence that creates a triable issue concerning the

employer’s discriminatory intent.” Tynes, 88 F.4th at 946 (quotation

omitted). “Bits and pieces” of evidence, as McCreight puts it, are

not enough, no matter which theory the plaintiff travels under.

But bits and pieces are all she offered. Returning to the

specifics of McCreight’s 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 King’s 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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Missing from McCreight’s 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 loan—but 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 mistakes—and he,

like McCreight, was told to either resign or be terminated. And as

for the third, McCreight’s 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 McCreight’s general evidence of sex

discrimination—that is, King’s 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 employer’s 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 own—a plaintiff also needs evidence connecting that animus

to the adverse employment action against her. See Rojas v. Florida,

285 F.3d 1339, 1342–43 (11th Cir. 2002). Because McCreight has

failed to offer enough evidence for a reasonable jury to conclude

that she was discriminated against because of her sex, we affirm

the district court’s 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. §§ 623(a)(1), 631(a). To

establish a claim under the ADEA, “a plaintiff must prove that age

was the ‘but-for’ cause of the employer’s adverse decision.” 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

Qui, 814 F.3d at 1235, 1237–39; Sims v. MVM, Inc., 704 F.3d 1327,

1331–33 (11th Cir. 2013).

McCreight and Wester argue that they have provided

enough evidence to show that they were fired 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 “convincing mosaic”

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 “convincing mosaic standard” are two

ways to approach the same question: whether the plaintiff has put

forward enough evidence for a reasonable jury to conclude that

illegal discrimination occurred. Here, however, neither McCreight

nor Wester did so—no matter how one looks at it.

A.

The district court’s task at summary judgment is to assess

the plaintiff’s claims according to the ordinary summary judgment

standard. “That legal standard applies no matter how an employee

presents her circumstantial evidence.” 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 destination—the ordinary summary

judgment standard. Tynes, 88 F.4th at 943–47. One approach is not

more forgiving than the other on the final 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 “set out a burden

shifting framework designed to draw out the necessary evidence in

employment discrimination cases.” Tynes, 88 F.4th at 944. A

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22 Opinion of the Court 22-12577

plaintiff 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, finally, the plaintiff must show that

the employer’s reason is pretext for unlawful discrimination. Poer

v. Jefferson Cnty. Comm’n, 100 F.4th 1325, 1336 (11th Cir. 2024); Tynes,

88 F.4th at 944. This final question of pretext “merges with the

plaintiff’s ultimate burden of persuading the factfinder that she has

been the victim of intentional discrimination.” 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 is—in its entirety—the

summary judgment standard. That phrase “is a metaphor, not a

9 The term “prima facie case,” though ordinarily meaning “enough evidence

for a plaintiff to prevail on a particular claim,” carries a different meaning in

the McDonnell Douglas context—“the establishment of a legally mandatory, re-

buttable presumption.” Tynes, 88 F.4th at 945 (quotation omitted). That pre-

sumption serves as “a sort of practical coercion that forces the defendant to

come forward with evidence explaining its actions,” and it gives the defendant

employer “a better idea of what evidence needs to be rebutted.” Id. (quotation

omitted). Once the defendant employer offers evidence of the reason for its

actions toward the plaintiff, the prima facie case “drops out of the picture”

because the district court now has “all the evidence it needs to decide whether

the defendant intentionally discriminated against the plaintiff.” Id. (quotations

omitted).

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22-12577 Opinion of the Court 23

legal test and not a framework.” 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 town—a

particularly useful point for employees with significant 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

different than the ordinary summary judgment standard. Perhaps

the fact that the phrase “convincing mosaic” is more poetic than

your average legal term has contributed to that idea. But imagine

if, rather than “a convincing mosaic of circumstantial evidence that

would allow a jury to infer intentional discrimination,” the court

had said “enough evidence to allow a jury to infer intentional

discrimination.” 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 different from the ordinary summary

judgment standard. So to the extent the term “convincing mosaic”

has become a distraction, we again reiterate that 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

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24 Opinion of the Court 22-12577

party is entitled to judgment at that stage of the case.” Tynes, 88

F.4th at 947. 10

What follows is that a plaintiff need not specifically use the

term “convincing mosaic” in the trial court to contend on appeal

that she has offered enough evidence to survive summary

judgment. Contrary to the partial dissent’s view, we have never

imposed a “magic words” requirement before, and we decline to

do so here. See Hull Partial Dissent at 6–7. Our “general rule that

issues must be raised in lower courts in order to be preserved” does

“not 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.” See Nelson v. Adams USA, Inc., 529 U.S. 460, 469 (2000).

So long as a plaintiff 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 used—“pretext,” “convincing

mosaic,” “summary judgment”—the substance of the argument is

the same.

10 The Seventh Circuit, where this phrase originated, agrees. It has repeatedly

chastised litigants that the “‘convincing mosaic’ is not a legal test of any kind.”

Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764–65 (7th Cir. 2016). The proper—

and only—legal standard is “whether there was evidence from which a rea-

sonable trier of fact could infer discrimination.” 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 different for the first time in Bailey v. Metro Ambulance

Services, when the opinion stated that the plaintiff “forfeited any

‘convincing mosaic’ argument” by failing to sufficiently raise it.

992 F.3d 1265, 1273–74 (11th Cir. 2021). But read closely, the

decision in Bailey was based on the plaintiff’s 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 different claim he had raised. Id. Because Bailey “made

no other argument” in support of his disparate treatment claim,

this Court affirmed the district court’s decision rejecting that claim.

Id. In other words, the panel’s point in Bailey was not that the

plaintiff 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

plaintiff forfeits convincing mosaic arguments by failing to use that

specific phrase below. Hull Partial Dissent at 12–17. Though we

think that is not the best reading, we’ll 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 “if at all possible.” United

States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993); see also Babb v.

Sec’y, Dep’t of Veterans Affs., 992 F.3d 1193, 1203 (11th Cir. 2021).

Our reading of Bailey as addressing a complete failure to defend a

claim at summary judgment offers 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 employer’s claim that a

plaintiff 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 1306–07, 1309, 1312–13. No

matter—it 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, 534–35 (1992). “The legal standard—and

the question for the court at summary judgment,” we said, “is only

whether the evidence permits a reasonable factfinder to find that

the employer retaliated against the employee.” Berry, 84 F.4th at

1311.

We disagree with the partial dissent’s view that Berry is

irrelevant here because the plaintiff in that case used the words

“convincing mosaic” in the district court for one of the claims

raised, thereby preserving the issue for appeal. Hull Partial Dissent

at 17–19. The plaintiff used those magic words, it is true. But as

explained above, that was not the basis for the Berry panel’s

decision. The Court recalled that “‘convincing mosaic’ is a

metaphor, not a legal test and not a framework.” Berry, 84 F.4th at

1311. Indeed, any other response would have been inconsistent

with our statement more than two decades earlier that “the

plaintiff 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

employer’s discriminatory intent.” Smith, 644 F.3d at 1328. 11

11 We also disagree with the partial dissent’s 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 “are not precedential and they

bind no one.” 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 plaintiff’s convincing mosaic arguments. Corley v. Mer-

cedes-Benz U.S. Int’l, Inc., No. 21-11986, 2022 WL 2345808 at *3–5 (11th Cir.

June 29, 2022) (unpublished); Skelton v. Birmingham Airport Auth., No. 20-13982,

2021 WL 4476800 at *3–4 (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 (“the record evidence did not show a genuine

dispute as to any material fact”). 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 “convincing mosaic”

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 “convincing mosaic.” 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 court—one that

we would interrupt by holding the opposite.

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28 Opinion of the Court 22-12577

In short, the terms “McDonnell Douglas” and “convincing

mosaic” do not dictate the legal standard that plaintiffs are entitled

to receive at summary judgment. We now consider whether the

district court’s 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 Wester’s convincing

mosaic arguments on appeal were preserved below, we look to the

record—particularly 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

Dep’t of Cmty. Affs. 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 AuburnBank’s reason for firing

them was pretextual. In other words, the district court found that

McCreight and Wester’s ADEA claims failed the ordinary summary

judgment standard.12

12 This is one reason that we do not share the partial dissent’s concern about

fair notice to the district court. See Hull Partial Dissent at 12, 20–22. Here, as

in most cases, the district court considered the plaintiffs’ evidence without

grounding the conclusion in anything but the ordinary summary judgment

standard. What’s 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 court’s conclusion that there was not enough evidence to

suggest intentional discrimination. They rely on all the same

evidence as they did below—but this time they add the term

“convincing mosaic.” That new phrase, however, does not bring

with it any new arguments. Contra Hull Partial Dissent at 20–21.

McCreight and Wester’s 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

“convincing mosaic” by name in reference to their ADEA claim

before the district court, the district court’s 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 bank’s true reason for firing them was age

discrimination.

That determination was correct. We start with McCreight,

who points to five other AuburnBank employees as examples of

differential treatment based on age. McCreight also tries to cast

doubt on whether her termination was justified, arguing that she

here and in Tynes, at the third step of McDonnell Douglas the plaintiff tries to

show—with whatever evidence she has—that “the real reason for the employ-

ment action was discrimination.” Tynes, 88 F.4th at 944.

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30 Opinion of the Court 22-12577

was never told to use a new prequalification letter, that she was

given permission to use the old letter, and that AuburnBank

deviated from its policies by firing her. Finally, McCreight relies on

King’s statements about wanting to hire younger women.

This evidence is not enough to show that age discrimination

was the true reason McCreight was fired. The record reflects that

she improperly approved an unqualified borrower without

authorization to do so. Her contention that she did not know

about the new form letter she was supposed to use falls flat; 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 first error—McCreight had made

other serious mistakes and received a reprimand and warning for

each.

What’s more, the other evidence McCreight points to does

not suggest that King fired 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 McCreight’s. And

while two others did make serious and costly mistakes, both

resigned or transferred—and neither of them worked under King.

Moreover, while we agree that King’s comments support

McCreight’s claims of discrimination, stray comments alone are

not enough to overcome the summary judgment standard. See

Beaver v. Rayonier, Inc., 200 F.3d 723, 729–30 (11th Cir. 1999).

Because McCreight failed to provide sufficient 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 borrower’s employment was not actually her own

because she had asked her coworkers to handle it while she was out

of the office.

But Wester too had a history of not completing her work on

time, and she admits that she failed to timely verify the borrower’s

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, different treatment of different employees with different

violations of different rules is not enough. Because neither Wester

nor McCreight provided enough evidence to suggest that they

were fired because of their age, their ADEA discrimination claims

fail.

V.

We now turn to McCreight and Wester’s Title VII and

ADEA retaliation claims. Both statutes prohibit an employer from

discriminating against an employee because she “has opposed any

practice made an unlawful employment practice.” 42 U.S.C.

§ 2000e-3(a); see also 29 U.S.C. § 623(d). “To that end, employers

cannot retaliate against employees who have complained about—

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32 Opinion of the Court 22-12577

that is, opposed—discrimination” 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 first two: both complained to human

resources about King, and their firings 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 employee’s complaints and the

adverse employment action. Proof of the decisionmaker’s

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 “that false rumors were being

spread about her” 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 Publ’g 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

reflect that she shared only McCreight’s complaint that King had

spread false rumors about her; there is no discussion of

McCreight’s 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 differently, or that at the very least this is a

disputed issue of fact for the jury. But “a jury finding that a

decisionmaker was aware of an employee’s protected conduct

‘must be supported by reasonable inferences from the evidence,

not mere speculation.’” 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 latter—mere speculation.

Wester’s case is even weaker. She concedes that she did not

use the word “age” 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 fired, 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 different

from complaining about age discrimination. And in Wester’s own

telling, she never complained specifically about age discrimination;

she told Carrington that she did not like her work environment and

requested a transfer. The record reflects that Carrington told King

and Herring that Wester had requested a transfer—not 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 is—again—

too attenuated. Martin, 959 F.3d at 1053–55. While Wester shows

temporal proximity (she was fired 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 plaintiffs seeking relief from discrimination. But all

roads lead to Rule 56—so long as a plaintiff offers 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 sufficient evidence to avoid summary judg-

ment on their discrimination claims. I write separately to offer

some perspective with respect to the “sex-plus” dilemma plaintiffs

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 “intersectional”

and the majority opinion refers to as “sex-plus,” 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 “subgroup discrimination”

claims. See Marc Chase McAllister, Proving Sex-Plus Discrimination

through Comparator Evidence, 50 Seton Hall L. Rev. 757, 760 (2020)

(“Subgroup discrimination claims . . . focus on the employer’s

treatment of one segment of a protected group . . . rather than the

group as a whole . . . .”).

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) (“For example, an employer may treat

an Asian woman differently from a White woman or an Asian

man . . . . Thus, she may be subject to stereotypes to which White

women and Asian men are immune.”); Kimberlé 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) (“Because 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.” (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 different statutory schemes for guarding against discrimination

create additional complexities for subgroup discrimination plain-

tiffs. For example, as explained in the majority opinion, a plaintiff

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 “sex-plus-age” basis. See Maj. Op. at 10–11. In that instance, the

plaintiff may proceed under either a single-motive or mixed-motive

theory of discrimination. Id. at 12–13. However, if that same plain-

tiff 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, 175–76 (2009) (holding that the

ADEA does not authorize a mixed-motive age discrimination

claim).

Unfortunately, the challenges for plaintiffs 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 49–51.

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 50–51 (describing subsets

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22-12577 ABUDU, J., Concurring 3

of workers who may be harmed based on intra-group differences

such as skin tone, one’s 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. Affinity

Gaming Black Hawk, LLC, 966 F.3d 1038, 1048 (10th Cir. 2020) (hold-

ing that a sex-plus plaintiff “must show unfavorable treatment rela-

tive to an employee of the opposite sex who also shares the ‘plus-’

characteristic”), and Fisher v. Vassar Coll., 70 F.3d 1420, 1446 (2d Cir.

1995) (“To establish that [an employer] discriminated on the basis

of sex plus marital status, [a] plaintiff must show that married men

were treated differently from married women.” (emphasis in origi-

nal)) (subsequent history omitted), with Sprogis v. United Air Lines,

Inc., 444 F.2d 1194, 1198 (7th Cir. 1971) (finding discrimination

claim based on employer’s policy of terminating married women

was not “negated by [employer]’s claim that the female employees

occupy a unique position so that there is no distinction between

members of opposite sexes within the job category”), and McGrena-

ghan v. St. Denis Sch., 979 F. Supp. 323, 327 (E.D. Pa. 1997) (finding

plaintiff survived summary judgment on her sex-plus Title VII dis-

crimination claim where comparator was another woman who was

not in her proffered subgroup of “women who have children with

disabilities”).

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 Court’s opin-

ion, which affirms summary judgment for the defendants on

(1) plaintiff McCreight’s sex discrimination claim under Title VII

and (2) plaintiffs McCreight’s and Wester’s retaliation claims under

Title VII and the ADEA. However, I am unable to join Section IV

as to the plaintiffs’ 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 plaintiff forfeits

the “convincing mosaic” way of inferring discriminatory intent by

failing to squarely present that issue in the summary judgment

briefing 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 plaintiffs forfeited the “convincing mosaic” 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,

plaintiffs cannot switch horses at this stage by raising and briefing

the “convincing mosaic” issue for the first 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 briefing 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 differ-

ent circumstantial evidence tools—McDonnell Douglas’s framework

or the alternative “convincing mosaic” metaphor—is 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 plaintiffs did not raise or brief the “convinc-

ing mosaic” issue in the district court and thus forfeited that issue

on appeal.

(2) Our Bailey’s forfeiture holding—that a plaintiff forfeits

the “convincing mosaic” way of inferring discriminatory intent by

failing to present that issue in the summary judgment briefing—

and why Bailey controls this case. 2

(3) Why the Court’s assertion—that our 2021 Bailey decision

“stands contrary to our decision in” Berry v. Crestwood Healthcare LP,

84 F.4th 1300 (11th Cir. 2023)—is wrong. Plaintiff Berry raised the

“convincing mosaic” issue in the district court. What changed on

appeal in Berry was the plaintiff’s specific arguments falling under

the same “convincing mosaic” umbrella. In contrast, here the

plaintiffs 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 plaintiff’s

failure to raise explicitly the “convincing mosaic” 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 “convincing mosaic” issue on appeal,

which makes this case fall under Bailey and shows there is no con-

flict between Bailey and Berry.

(4) The consequences of the Court’s adoption of a new no-

forfeiture rule that collapses McDonnell Douglas and the “convincing

mosaic” issues into a single issue, whereby the plaintiffs can pre-

serve the “convincing mosaic” issue on appeal even though the

plaintiffs raised and briefed only the McDonnell Douglas issue in the

district court.

I. DISTRICT COURT PROCEEDINGS

A. Defendants’ Briefs in Support of Summary Judgment

In the district court, the defendants asserted they were enti-

tled to summary judgment on the plaintiffs’ age claims under both

McDonnell Douglas’s three-step burden-shifting framework and the

alternative “convincing mosaic” method. 3 The defendants’ briefs

had a numbered section devoted to McDonnell Douglas in which

they analyzed the evidence and argued the plaintiffs failed to satisfy

their prima facie case burden to present evidence of valid compar-

ators.

The defendants’ briefs also had a separately numbered sec-

tion entitled: “There is no ‘convincing mosaic of circumstantial evi-

dence.’” (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 “[wa]s not the only avenue” for the plaintiffs

to survive summary judgment. The defendants’ briefs cited some

of our convincing mosaic precedent, including Smith v. Lockheed

Martin Corp., 664 F.3d 1321 (11th Cir. 2011). The defendants’ briefs

even correctly stated the general “convincing mosaic” principle:

“The triable issue exists if ‘the record, viewed in the light most fa-

vorable to the plaintiff, presents a convincing mosaic of circum-

stantial evidence that would allow a jury to infer intentional dis-

crimination by the decisionmaker.’” And then, the defendants’

briefs analyzed all the circumstantial evidence under the “convinc-

ing mosaic” approach.

What happened next makes the plaintiffs’ forfeiture crystal

clear.

B. Plaintiffs’ Joint Summary Judgment Response

Even though the defendants’ briefs had separate sections on

the “convincing mosaic” approach and the McDonnell Douglas

framework, the plaintiffs’ joint response brief did not raise or brief

the alternative “convincing mosaic” method or cite any of this

Court’s convincing mosaic decisions as to their age claims.

Rather, the plaintiffs’ 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 specifically, the plaintiffs’ summary judg-

ment response claimed each had demonstrated a prima facie case

of age discrimination—Wester 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 plaintiffs also

argued AuburnBank’s proffered reasons for firing them were not

legitimate and were pretextual.

What’s more, in outlining the applicable law as to their age

claims, the plaintiffs cited these three cases, which all applied only

McDonnell Douglas’s three-step framework and did not mention the

“convincing mosaic” 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. App’x 888 (11th Cir. 2013).

Notably, too, the plaintiffs’ “pretext” argument was that the

defendants’ proffered 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 plaintiffs’ omission of the “convincing mosaic” issue as

to their age claims is particularly glaring given that a separate sec-

tion of the plaintiffs’ same joint summary judgment response ad-

dressed McCreight’s sex-plus discrimination claim and explicitly

raised the “convincing mosaic” issue by name and cited our “convinc-

ing mosaic” cases.

C. District Court’s Summary Judgment Order

Given how the plaintiffs elected to brief their age claims, the

district court understandably analyzed those claims under only

McDonnell Douglas’s framework—the only way the plaintiffs briefed

that issue. The Court states “the district court considered the

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6 Hull, J., Concurring in part and Dissenting in part 22-12577

plaintiffs’ evidence without grounding the conclusion in anything

but the ordinary summary judgment standard.” Maj. Op. at 28 n.12

(citing Doc. 142 at 9-35). That is simply not accurate. The district

court’s conclusions as to the plaintiffs’ 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 “dis-

pense[d] with” whether McCreight made a prima facie case and an-

alyzed whether AuburnBank’s proffered reason for terminating her

was pretextual because that “pretext analysis [was] dispostive.”

The district court concluded that McCreight’s evidence—which in-

cluded King’s ageist comments and the more favorable treatment

for younger workers’ mistakes—“failed to demonstrate pretext.”

Moving to plaintiff Wester’s 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 evidence—the same as McCreight’s evi-

dence—was “insufficient to rebut” AuburnBank’s legitimate reason

for terminating Wester, and (3) thus “Wester ha[d] failed to present

sufficient evidence to demonstrate that AuburnBank’s reason for

firing her was pretextual.”

Section V.B. of the district court’s order did not consider

whether either plaintiff’s circumstantial evidence, although insuffi-

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 plaintiff 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 Court’s opinion, the forfeiture

issue is not about “magic words” or the “incantation of particular

words.” Maj. Op. at 24. Rather, it is about the requirement that the

district court be fairly put on notice of a plaintiff’s claims and the

issues to be decided by the district court. No matter how my col-

leagues try to slice and dice it, the plaintiffs 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 plaintiffs adopt a different position. As

to their age claims, the plaintiffs’ opening appellate brief raises no

issues under McDonnell Douglas’s framework and instead contends

only that the district court should have denied summary judgment

under the “convincing mosaic” method.

The defendants respond that McCreight and Wester for-

feited any reliance on the “convincing mosaic” 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

plaintiffs’ joint summary judgment response in the district court

forfeited the alternative “convincing mosaic” issue by addressing

only McDonnell Douglas’s three-prong framework as to their age

claims.

The Court says no. The first two steps of its reasoning are

that (1) the “convincing mosaic” approach is no different than the

ordinary summary judgment standard, and (2) the ordinary sum-

mary judgment standard in discrimination cases is whether a plain-

tiff 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 Court’s third step involves forfeiture and is where I

part company. Here’s the Court’s new no-forfeiture rule:

So long as a plaintiff 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 used—“pretext,” “convincing

mosaic,” “summary judgment”—the 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 different

issues (such as the McDonnell Douglas framework or the alternative

“convincing mosaic” issue) at summary judgment in discrimina-

tion cases as long as the plaintiff 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 “convincing mo-

saic” issue given how the plaintiffs briefed their case only under the

McDonnell Douglas framework. Just the opposite.

In any event, the Court’s new no-forfeiture rule violates our

prior panel precedent in Bailey, which held a plaintiff forfeits the

“convincing mosaic” 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 “convincing mosaic” approach are two different

tools or ways to use circumstantial evidence to create an inference of

intentional discrimination to defeat summary judgment. Even the

Majority describes them as “two ways” or “two paths” 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 different analytical factors. See,

e.g., Berry, 84 F.4th at 1307-13 (stating the McDonnell Douglas three-

step framework is “one tool” and “not the exclusive means” and

analyzing plaintiff’s Title VII retaliation claim first under the

McDonnell Douglas framework and alternatively, in a separate sec-

tion, under the “convincing mosaic” method that uses circumstan-

tial evidence of any kind (quotation marks omitted)); Yelling v. St.

Vincent’s 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 plaintiffs’ circumstantial evidence of race discrimination

under the “convincing mosaic” approach as “an alternative” 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 plaintiff’s 42 U.S.C. § 1981

race discrimination claim first under the McDonnell Douglas frame-

work and alternatively under the “convincing mosaic” 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 plaintiff’s circumstantial evidence did not sat-

isfy the McDonnell Douglas framework, noting Lewis’s ADA claims and “con-

vincing mosaic” “theory” of Title VII liability were not before the en banc

court, and remanding “[t]hose issues, and any other pending matters . . . to the

panel for resolution in the first instance”); Lewis v. City of Union City, 934 F.3d

1169, 1185-89 (11th Cir. 2019) (Lewis II) (concluding on remand that the plain-

tiff prevailed—i.e., survived summary judgment—on “convincing mosaic”

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 plaintiff forfeits the “convincing mosaic” issue by failing

to squarely present it in the summary judgment briefing in the dis-

trict court).

Our Bailey precedent is on point. Although the Court in Sec-

tion IV suggests my reading of Bailey is “a plausible one,” Section

IV asserts it “stands contrary to our decision” in Berry and thus we

must “reconcile Bailey with Berry.” Maj Op. at 25. The Court also

asserts “the partial dissent’s view” is that “Berry is irrelevant.” Maj.

Op. at 26.

Not so. To be clear, my view is Bailey (2021) and Berry (2023)

involved different questions, and there is no conflict between them.

Specifically, in Berry: (1) the plaintiff separately and adequately

raised both the McDonnell Douglas issue and the “convincing mo-

saic” issue in the district court; (2) the Berry Court addressed both

issues in separate sections; (3) the plaintiff advanced the same issue

in the district court and on appeal: whether “she presented a con-

vincing mosaic of circumstantial evidence that raises a reasonable

inference of retaliation,” Berry, 84 F.4th at 1311; but (4) what

changed on appeal was Berry’s specific arguments falling under the

same “convincing mosaic” umbrella. In contrast, the Bailey plaintiff

did not squarely raise the “convincing mosaic” 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 “that an issue not raised in the district court and raised for the

first time in an appeal will not be considered by this [C]ourt.” 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 first clearly present it to the district court, that is, “in such

a way as to afford the district court an opportunity to recognize and

rule on it.” Juris v. Inamed Corp., 685 F.3d 1294, 1325 (11th Cir. 2012)

(quotation marks omitted).

As to the plaintiffs’ age claims, the district court here ad-

dressed only the three steps of the McDonnell Douglas framework

because that was what the plaintiffs briefed as to their age claims

and was the clear briefing signal to the district court. How the

plaintiffs briefed their case did not give the district court fair notice

it needed to rule on the “convincing mosaic” 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 there’s even more precedent—Bailey—which addresses

the specific forfeiture issue here. In Bailey, our Court concluded

that a plaintiff forfeits a “convincing mosaic theory” of showing

discriminatory intent by failing to “squarely present[]” it in sum-

mary judgment briefing 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

plaintiff 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 plaintiff who “puts all her eggs in the direct-evidence basket”

forfeits “the available methods of making out a circumstantial-evi-

dence case.” 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 plaintiff, a Rastafarian, brought three Title VII

claims against his former employer for “failure to reasonably ac-

commodate Bailey’s religious requirement, discrimination on the

basis of religion, and retaliation for filing a discrimination claim.”

992 F.3d at 1269. Bailey claimed his employer “treated him worse

than non-Rastafarians because he was Rastafarian.” Id. at 1273. As

to disparate treatment based on religion, Bailey alleged “two

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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.” Id. at 1272. “Bailey sought summary judgment

on the retaliation claim, and [his employer] filed for summary judg-

ment on all claims.” Id.

In his summary judgment response in the district court, Bailey

actually included the “convincing mosaic” theory in “his general dis-

cussion of the law governing disparate-treatment claims.” Id. at

1273 (emphasis added). Bailey’s response asserted that his brief in

support of his own summary judgment motion provided “convinc-

ing mosaic” evidence of “direct suspicious timing evidence” in sup-

port of his traditional disparate treatment claim. Id. However, Bai-

ley’s summary judgment briefing “did not deliver on its promise.”

Id.

Instead, in the district court, Bailey’s own summary judgment

brief raised and argued a “convincing mosaic” theory “in conjunc-

tion with only Bailey’s retaliation claim”—“not in conjunction with

a traditional religious disparate-treatment discrimination claim.” Id.

at 1273-74 (emphasis added). Just like the plaintiffs here.

Then, on appeal, Bailey, like the plaintiffs here, tried to raise

the “convincing mosaic” issue as to his disparate treatment claim, but

our Court held Bailey had forfeited it. Id. We based this forfeiture

conclusion on “[t]he clear import of all this briefing” in the district

court. Id. at 1274.

Specifically, the Bailey Court stated: “We disagree that Bailey

squarely presented a ‘convincing mosaic’ 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 briefing in

the district court.” Id. at 1273. In addition, our Court said that

“while Bailey tried in his objections to the report and recommen-

dation to assert a ‘convincing mosaic’ argument in support of his

traditional disparate-treatment claim, he once again made no specific

arguments tying the ‘convincing mosaic’ theory to his disparate-treatment

claim.” Id. at 1274 (emphasis added). Bailey twice actually dis-

cussed the “convincing mosaic” theory in the district court—in his

general law discussion and in his objections to the report and rec-

ommendation as to his disparate treatment claim—but he never

followed that up with “convincing mosaic” 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 “Bailey forfeited any ‘convincing mosaic’ argument in

support of his traditional religious disparate-treatment discrimination

claim.” Id. at 1274 (emphasis added). At bottom, Bailey raised the

“convincing mosaic” 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 “made no other argument to

support that version of his disparate-treatment discrimination

claim, we affirm[ed] the district court’s grant of summary judg-

ment for [his employer] on Bailey’s traditional religious disparate-

treatment discrimination claim.” Id. In other words, the “convinc-

ing mosaic” 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 affirm 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 “stated that the plaintiff ‘forfeited any “convinc-

ing mosaic” argument’ by failing to sufficiently raise it” in the dis-

trict court. Maj. Op. at 25. But then comes the dodge. The Court’s

Section IV opines that (1) “the decision in Bailey was based on the

plaintiff’s failure to raise any sort of argument in favor of his dis-

parate treatment claim,” (2) Bailey “had claimed that a convincing

mosaic of evidence supported a different claim he had raised,” and

(3) thus “[b]ecause Bailey ‘made no other argument’ in support of

his disparate treatment claim, this Court affirmed the district

court’s decision rejecting that claim.” Id. This description in Sec-

tion IV strings snippets from Bailey together out of context.

To the contrary, the Court’s focus in Bailey was on whether

the “convincing mosaic” issue in particular was sufficiently raised in

the district court as to the disparate treatment claim. The Bailey

Court concluded it was not because, although Bailey had men-

tioned “convincing mosaic” 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 “convincing mosaic” evidence to his

disparate treatment claim. Id. at 1274. Bailey was not about “any

sort of argument” but was expressly about Bailey’s 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 plaintiff forfeits the “convincing mosaic”

issue by failing to raise it squarely in the district court.

2. Berry

In Section IV, the Court argues that our Bailey “stands con-

trary to our decision in Berry,” and we must “reconcile” them. Maj.

Op. at 25. But Bailey (2021) and Berry (2023) involved different ques-

tions, and there is no conflict between them that needs reconciling.

As background, the Berry plaintiff 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 § 1981. Id. at 1307. At the outset, the Berry

Court states: “Both statutes require the same proof and analytical

framework,” and “[s]o we analyze the claims together.” Id.

Then, the Berry Court separated its opinion into two parts:

(1) an analysis of Berry’s retaliation claims under the McDonnell

Douglas framework, examining the prima facie case, the legitimate

reason for Berry’s termination, and pretext in Section III.A. and (2)

a separate analysis of her retaliation claims under the alternative

convincing mosaic approach, examining whether Berry’s 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 plaintiff “argued” the “convincing mosaic”

issue in opposing summary judgment in the district court. Here

again is what the Berry Court itself said as to the plaintiff’s retalia-

tion claims:

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18 Hull, J., Concurring in part and Dissenting in part 22-12577

Berry responded [to her employer’s 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 employer’s] justification 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 plaintiff who

merely intoned the words “convincing mosaic” and thus failed to

sufficiently raise the “convincing mosaic” issue in the district court.

Rather, in Berry, the plaintiff advanced the same “issue” in

the district court and on appeal—whether “she presented a con-

vincing mosaic of circumstantial evidence that raises a reasonable

inference of retaliation.” Id. at 1311. The Berry Court explicitly

said: “Berry 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.” Id. And “[i]f a party presents an issue

to the district court, she may make any argument in support of that

issue on appeal.” Id. at 1312.

What changed on appeal was Berry’s specific “arguments”

falling under the same “convincing mosaic” umbrella. See id. (explain-

ing the defendant Crestwood complained “that Berry did not pre-

serve the convincing-mosaic arguments” 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 defendant’s forfeiture

contention because Berry properly preserved her “convincing mo-

saic” issue by sufficiently raising and arguing it in the district court

in the summary judgment briefing as to her retaliation claims. Id.

at 1307, 1312. And plaintiff Berry was not limited on appeal to the

precise “convincing mosaic” arguments she had made in the district

court in support of the clearly preserved “convincing mosaic” is-

sue. Id. (citing Yee v. City of Escondido, 503 U.S. 519, 534 (1992); Hi-

Tech Pharms., Inc. v. HBS Int’l 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 plaintiff raised the “convincing mosaic” issue in

the district court as to her retaliation claims, Berry is not this case.

Rather, this case falls directly under Bailey, where the plaintiff 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 conflict (which it does not), our 2021 Bailey is first in

time and controls.6

6 The timing perhaps sheds light on what’s really going on. The defendants’

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 plaintiffs’

summary judgment response did not mention, much less tie, the

“convincing mosaic” theory to their age claims. This omission was

glaring because the plaintiffs’ response did raise and tie the evi-

dence to the “convincing mosaic” issue as to McCreight’s sex-plus

claim. Thus, as in Bailey, McCreight and Wester forfeited the “con-

vincing mosaic” issue as to their age claims by failing to advance it

in the district court and raising it for the first time on appeal.

My conclusion focuses on what actually occurred in the

briefing in this particular case. Here, the district court addressed

what the plaintiffs raised and briefed as to their age claims, and the

plaintiffs are not permitted to raise new issues for the first time on

appeal. Plaintiffs 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 plaintiffs’ age claims fail on appeal, whether

for procedural reasons (forfeiture) or for substantive reasons (Sec-

tion IV’s 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 “ignoring our recent prece-

dent” 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 significant untoward consequences.

For starters, Section IV’s new no-forfeiture rule—a plaintiff’s

stating the basic summary judgment standard preserves all issues—

means district courts will not have the required fair notice of the

issues to be decided. To defeat summary judgment, plaintiffs rou-

tinely use one or more evidentiary tools: (1) direct evidence; (2) cir-

cumstantial evidence under McDonnell Douglas’s three-step burden-

shifting framework; and (3) circumstantial evidence under the

“convincing mosaic” theory. Our precedent contains distinct and

different analytical factors in each approach. Plaintiffs 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

Court’s new no-forfeiture rule absolves plaintiffs of that fair-notice

duty.

In turn, the new no-forfeiture rule deprives this appellate

court of the benefit of the district court’s analysis, in the first in-

stance, applying the different 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 court’s order of all the circumstantial evidence under

the “convincing mosaic” issue because the plaintiffs 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 Court’s opinion,

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22 Hull, J., Concurring in part and Dissenting in part 22-12577

and respectfully dissent from the Court’s failure to follow our for-

feiture precedent as to the plaintiffs’ age claims. 7

V. UNPUBLISHED DECISIONS FOLLOWING BAILEY

One last concern. While I rarely cite non-published deci-

sions, the Majority’s failure to follow Bailey in Section IV will be

readily noticed by employment lawyers as conflicting with recent

non-published decisions. So, let’s 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 plaintiff’s

failure to raise explicitly the “convincing mosaic” 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 plaintiff’s discrimination

claim, he forfeited his “convincing mosaic” theory by raising it for

7 As an aside, I am sympathetic to the view that perhaps the “convincing mo-

saic” issue should be the primary issue and the McDonnell Douglas issue “rele-

gate[d] . . . to the sidelines.” See Tynes v. Fla. Dep’t 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 reasons—so 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 court’s 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 first time on appeal); Lewis v. Sec’y of the U.S. Air Force, No. 20-

12463, 2022 WL 2377164, at *11 (11th Cir. June 30, 2022) (citing

Bailey and holding “Lewis has abandoned [her “convincing mo-

saic”] argument by failing to raise the issue before the district

court”); Skelton v. Birmingham Airport Auth., No. 20-13982, 2021 WL

4476800, at *3 (11th Cir. Sept. 30, 2021) (citing Bailey and noting a

plaintiff whose claim fails under McDonnell Douglas may survive

summary judgment through a “convincing mosaic” of circumstan-

tial evidence, but holding plaintiff waived the “convincing mosaic”

issue by failing to raise it below); Corley v. Mercedes-Benz U.S. Int’l,

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 “convincing mosaic” theory,

but analyzing plaintiff’s claim under only the McDonnell Douglas

framework because plaintiff did not raise the “convincing mosaic”

theory in the district court, so that issue was not properly before

us); Jest v. Archbold Med. Ctr., Inc., 561 F. App’x 887, 888-89 (11th Cir.

2014) (predating Bailey but citing Access Now and holding plaintiff

failed to establish a prima facie case of race discrimination under

McDonnell Douglas and forfeited the “convincing mosaic” issue by

failing to raise it in the district court).8

In its footnote 11, the Majority argues these five non-

published decisions “do not prove the point” my partial dissent

8 As now allowed, the defendants’ 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) “perform a typi-

cal summary judgment analysis.” Maj. Op. at 27 n.11. Not correct.

In Corley and Skelton, the “typical summary judgment analysis” 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 Majority’s footnote 11, I respectfully

submit that the Subotic and Lewis decisions also hold directly and

expressly that the plaintiff forfeited a “convincing mosaic” 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 different

unpublished decisions “since Berry” that the Court asserts “rejected

the idea that the words ‘convincing mosaic’ need to be used at the

district court for us to consider a case under the ordinary summary

judgment standard.” Maj. Op. at 27 n.11. This is also incorrect.

Those four unpublished decisions never use the word “forfeiture”

anywhere because they did not involve a defendant arguing that the

“convincing mosaic” issue was forfeited. What’s more, Berry is

cited in only footnotes and only for the general propositions that a

plaintiff may survive summary judgment using the alternative “con-

vincing mosaic” approach and that a “convincing mosaic” is a met-

aphor, not a test, whereby a plaintiff 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-

ity’s 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 Majority’s, but

with the Majority’s instant published decision that fails to follow

our Bailey precedent.