Mark A. Thompson v. DeKalb County, GA

USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 1 of 37

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-11260

____________________

MARK A. THOMPSON,

Plaintiff-Appellant,

versus

DEKALB COUNTY, GA,

OVERTIS BRANTLEY,

in her individual capacity,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:17-cv-02244-MHC

____________________

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2 Opinion of the Court 19-11260

Before WILLIAM PRYOR, Chief Judge, ROSENBAUM, and LUCK, Cir-

cuit Judges.

LUCK, Circuit Judge:

Mark Thompson, a former attorney for DeKalb County,

Georgia, was fired in 2015. Thompson sued the county, claiming

that he was fired because of his age, in violation of the Age Dis-

crimination in Employment Act. The district court granted sum-

mary judgment for the county. Thompson now appeals. After oral

argument and careful review of the record, we affirm.

FACTUAL BACKGROUND 1

Thompson was a senior assistant county attorney for the

DeKalb County law department. He was the lead (and effectively

sole) attorney representing the county in Champion v. DeKalb

County, a breach of contract case initiated by county contractor

Paul Champion in 2010. While investigating the case, Thompson

discovered that Champion had fraudulently overbilled the county

with the assistance of a county employee. Thompson testified

about the fraud before a grand jury in February 2012.

1 Because Thompson—the non-moving party—appeals the district court’s

summary judgment for the county, we discuss the facts in the light most fa-

vorable to him. See Cowen v. Ga. Sec’y of State, 960 F.3d 1339, 1342 (11th

Cir. 2020) (“In reviewing the propriety of summary judgment, ‘we view the

evidence in the light most favorable to the non-moving party.’” (citation omit-

ted)).

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19-11260 Opinion of the Court 3

In March 2013, Overtis Brantley became the new county at-

torney. Upon assuming her role, Brantley held a meeting with the

entire law department. At the meeting, Brantley mentioned that

she had spoken with the county’s chief executive officer, who said

that he was “tired of looking at all these older people” and “wanted

the [c]ounty workforce to look younger.” She said that the chief

executive asked her, “Why can’t we have younger people?” Brant-

ley brought up the chief executive’s comments “in the context of

the fact that she . . . wanted to hire baby lawyers in the law depart-

ment.” She said that it was her “goal to hire baby lawyers” and that

she was “filling the nursery with baby lawyers.” Brantley later used

the phrase “baby lawyers” at “almost every meeting.” Whenever

Brantley was hiring a new person to the law department, she

would say: “I’ve got another baby lawyer. I’m filling the nursery.”

Brantley also met with Thompson “one on one” to discuss

his workload. Thompson indicated that he felt overworked and

needed assistance with Champion. The meeting became “very

weird” because Brantley “mocked” Thompson and “ma[de] crazy-

looking faces” at him. She belittled him by insinuating that he was

“naïve” and “taking it too seriously . . . that [he] had caught people

stealing in the [c]ounty.”

The county hired outside counsel to help Thompson with

Champion about a year after his request. The county’s outside

counsel moved for summary judgment based on sovereign im-

munity, and after the state trial court denied the motion, the

county began preparing an interlocutory appeal.

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4 Opinion of the Court 19-11260

Thompson’s immediate supervisor, Laura Johnson, directed

Thompson to make sure that the county’s appeal had a “clean rec-

ord” with no extraneous facts regarding the fraud. On November

13, 2014, Thompson told Johnson that she was making a “mistake

of enormous consequence” by excluding the fraud-related facts

from the appellate record. Johnson acknowledged that she and

Thompson had “very different opinions” but concluded that it was

“in the [c]ounty’s best interest . . . to simplify” and exclude the

fraud-related facts. After Johnson instructed outside counsel to file

the notice of appeal without the fraud-related facts, Thompson in-

formed Johnson that he wished to “withdraw from the case” and

did not “want [his] name on the notice of appeal” because John-

son’s position was “totally contrary to [his].”

On December 3, 2014, Thompson requested Johnson’s sig-

nature on his notice of substitution of counsel. Johnson explained

that she did not need to sign the notice because no one was being

substituted; it was just a withdrawal. But Thompson “insist[ed]”

that either Johnson or Brantley sign the notice. He claimed that

the applicable rule was “plain and straightforward” and that “[t]he

[c]ounty should follow the law.”

Brantley and Johnson met with Thompson to discuss his

withdrawal from the case. During the meeting, Brantley

“mock[ed]” and “berat[ed]” Thompson, repeatedly telling him that

he “didn’t work well with others,” “always thought that [he] was

the smartest person in the room,” “was not a team player,” and

“acted like a child” who would “pick up [his] toys and leave” when

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19-11260 Opinion of the Court 5

he couldn’t get his way. Brantley said she was “upset” about

Thompson’s withdrawal from Champion, but “her reasoning

seemed artificial” to Thompson. “The only thing that seemed to

be real [to Thompson] was [that] [Brantley] was intent on berating

[him].” He tried explaining to Brantley and Johnson that he had an

“ethical problem” with Johnson’s handling of the appeal, but Brant-

ley “guffawed and just laughed at that[,] as if [it] was just non-

sense.”

Johnson took notes about the meeting. According to John-

son’s notes, Brantley told Thompson that “she considered his de-

mand to withdraw a ‘temper tantrum’” and that he offended her

by saying “he did not want to be ‘associated with’ the kinds of de-

cisions being made in the case.” Johnson told Thompson that he

offended Johnson, too, by calling her “dumb” earlier in the meet-

ing. Johnson later testified that Thompson was “really being quite

hostile” throughout the meeting, and while he wasn’t yelling or

pounding his fists, Thompson did “raise[] his voice.”

Brantley eventually signed Thompson’s notice of substitu-

tion, which was filed on December 5, 2014. That same month,

Brantley informed Thompson that she considered his withdrawal

to be a fireable offense.

On May 6, 2015, Johnson visited Thompson’s office to in-

form him that Champion had filed a motion involving Thompson.

Thompson asked Johnson for more details about the motion, but

Johnson refused to give him additional information. After Thomp-

son read the motion and realized that Champion was seeking to

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6 Opinion of the Court 19-11260

hold Thompson personally liable for Champion’s attorney’s fees,

Thompson went to Johnson’s office to ask her what had happened

in the case. Johnson said she didn’t know. Thompson responded

that it was unacceptable for her to refuse to answer his questions,

and Johnson replied, “You’re interrogating me,” and asked him to

leave. After Johnson asked him to leave a second time, Thompson

left and sent an email to Brantley requesting that Brantley “sched-

ule a meeting ASAP” because Johnson was “refusing to answer [his]

questions about the case” and “withholding information.” During

his meetings with Johnson that day, Thompson was “upset” and

“firm with her,” but he wasn’t “angry.”

Johnson took notes about the May 6 meetings with Thomp-

son. According to Johnson’s notes, Thompson discussed Cham-

pion’s motion “in a hostile way,” accused Johnson of lying, and

called outside counsel incompetent. Johnson relayed these obser-

vations to Brantley. According to Thompson, he did not accuse

Johnson of lying, and he did not remember calling outside counsel

incompetent.

Brantley and Johnson met with Thompson again, this time

to discuss his May 6 meetings with Johnson. Brantley “just went

off on” Thompson about him “acting like [he’s] the smartest person

in the room” and behaving “like a child” who “can’t get along with

others.” Brantley repeatedly said that Thompson was “looking re-

ally ugly again” because of the way he was acting. Thompson ex-

plained that he didn’t trust outside counsel and that he wasn’t con-

fident outside counsel would adequately defend him against

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19-11260 Opinion of the Court 7

Champion’s motion. Thompson was “upset” during the meeting,

but he wasn’t “in any bad way” and he was “certainly coherent.”

Thompson later met with Johnson to discuss an affidavit for

the response to Champion’s motion. Champion’s motion claimed

that Thompson had “fabricated . . . allegations and knowingly

signed and filed a false pleading.” But, according to Thompson, he

had made allegations that he believed to be true based on infor-

mation that he had received from a county employee, and he later

withdrew those allegations after discovering they were false.

Thompson told Johnson, “We need to say that the [county em-

ployee] lied to me.” But Johnson responded that they couldn’t

“throw [the county employee] under the bus.”

On May 29, 2015, Thompson met with Brantley, Johnson,

and outside counsel to discuss Champion’s motion for attorney’s

fees. Brantley was “riding” Thompson from the beginning of the

meeting, telling him that he wasn’t a “team player” and that he al-

ways acted “like he’s the smartest guy in the room.” Thompson

responded that he was a team player but that “almost everybody

was lying to [him].” Thompson explained that he didn’t want to

“fall on [his] sword” to protect the county employee who had given

him false information, and he claimed that Johnson had “set

[Thompson] up” by forcing him to rely on that county employee.

Brantley reacted as though Thompson was “losing [his]

head”—as if Thompson’s words were “terrible.” She continued

“berating” him, and at the end of the meeting, Brantley told

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8 Opinion of the Court 19-11260

Thompson, “I’ve had it with you. You need to start looking for

another job.”

On June 19, 2015, Brantley and Johnson met with Thomp-

son for a final time. Brantley asked Thompson whether he had

“found another job.” Thompson said that he hadn’t, and Brantley

responded, “Well, you’ve had a couple of weeks to find another

job.” She continued, “I am terminating you, and the reason

is . . . because you withdrew from the Champion case. And you can

either resign in lieu of termination, or I will terminate you next

Friday.” Brantley “explicitly told [Thompson] she was terminating

[him] because [he] withdr[e]w from the Champion case.” She also

said she might be willing to give Thompson severance if he re-

signed.

Thompson later emailed Brantley telling her what he would

accept as severance. On June 25, 2015, Brantley rejected Thomp-

son’s severance request and informed him that his termination

would be effective as of 5:00 p.m. the following day. Brantley then

wrote Thompson a letter elaborating on the reasons for his termi-

nation. The letter stated:

I have long been concerned by your lack of demon-

strated ability to discuss legal issues in a clear and con-

cise way. You have also responded to stressful litiga-

tion situations in a hostile and arrogant manner when

interacting with me and others within this office dur-

ing recent months. This type of behavior is not con-

sistent with the team environment I have been work-

ing to build in the Law Department. I hope and

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19-11260 Opinion of the Court 9

believe that you will be able to find a work situation

that will be a better match for your skills and temper-

ament.

Thompson was fifty-four years old when he was fired.

Twelve of the thirteen lawyers hired by the county after Thomp-

son’s termination were in their thirties.

PROCEDURAL HISTORY

On May 10, 2016, Thompson sued DeKalb County in Geor-

gia state court, but the county removed the case to the Northern

District of Georgia. Thompson claimed that the county discrimi-

nated against him because of his age, in violation of the Age Dis-

crimination in Employment Act. 2 He alleged that “[he] was over

the age of forty at his termination”; that the county “sought to re-

place older lawyers with younger lawyers”; and that “[he] was re-

placed by a younger attorney under the age of forty.”

The county moved for summary judgment. It argued that

Thompson couldn’t establish a prima facie case of age discrimina-

tion under McDonnell Douglas Corp. v. Green, 411 U.S. 792

2Thompson also raised federal race discrimination claims against the county

and Brantley in her individual capacity and a state retaliation claim against the

county. The district court granted summary judgment for the county and

Brantley on the federal claims and remanded the state claim to state court.

Thompson does not appeal the district court’s summary judgment for the

county and Brantley on his federal race discrimination claims and he does not

challenge the district court’s remand of his state retaliation claim.

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10 Opinion of the Court 19-11260

(1973), because Thompson did not establish “that he was replaced

by or lost his position to [a] younger individual.” The county also

argued that Thompson failed to show that its legitimate, non-dis-

criminatory reasons for Thompson’s termination were pretexts for

age discrimination.

Thompson opposed the county’s motion, arguing that he

satisfied the McDonnell Douglas test and, alternatively, presented

“a convincing mosaic of circumstantial evidence.” Thompson ar-

gued that “every person hired after [him] was in his or her thirties,”

which “unquestionably satisfied [his] prima facie case of age dis-

crimination.” He argued that the county’s “shift in justification”

for his termination “alone” was evidence of pretext, and that the

county’s hiring pattern, Brantley’s ageist “baby lawyer” remarks,

and evidence that Thompson’s coworkers thought he was a good

and well-liked lawyer in the office showed that the county’s legiti-

mate, non-discriminatory reasons for his termination were “not

worthy of credence.” Thompson also argued that, in the alterna-

tive, he established a genuine issue of fact by presenting “‘a con-

vincing mosaic of circumstantial evidence’ that raise[d] a reasona-

ble inference that the [county] discriminated” against him.

The magistrate judge recommended that the district court

grant the county’s motion. The magistrate judge explained that,

under the McDonnell Douglas test, Thompson had to show “either

[] that [he] was replaced by a person outside of his protected class[,]

or [] that he was treated less favorably than a similarly-situated in-

dividual outside of his protected class.” The magistrate judge

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19-11260 Opinion of the Court 11

concluded that Thompson “failed to show a dispute of material fact

on either of these points.” Because Thompson “failed to meet his

burden of coming forward with competent replacement []or com-

parator evidence,” the magistrate judge recommended that the dis-

trict court grant summary judgment for the county.

Thompson objected to the magistrate judge’s report, argu-

ing that he established a prima facie case of age discrimination and

presented sufficient evidence of pretext under McDonnell Douglas.

Thompson also argued that he presented a “convincing mosaic of

circumstantial evidence that raise[d] a reasonable inference that the

[county] discriminated . . . against [him],” making “summary judg-

ment . . . [in]appropriate.” He argued that the magistrate judge

didn’t address Brantley’s “ageist” remarks and the county’s hiring

pattern from which “a jury could infer discrimination even without

a comparator or replacement.”

The district court overruled Thompson’s objections and

adopted the magistrate judge’s report. The district court agreed

with the magistrate judge that Thompson failed to establish a

prima facie case under the McDonnell Douglas test because

Thompson “presented no evidence that he was replaced by some-

one outside of his protected class” and “identified no comparator

outside his protected class who was treated more favorably.” The

district court found that the “ageist” remarks were not directed at

Thompson, and that Thompson’s age discrimination claim was

“half-hearted at best.” Because Thompson provided “no evidence

that would create a disputed issue of material fact as to being

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12 Opinion of the Court 19-11260

replaced by someone outside the protected class or treated less fa-

vorably than similarly situated individuals outside the protected

class,” the district court concluded that Thompson failed to estab-

lish a prima facie case of age discrimination and granted summary

judgment for the county.

STANDARD OF REVIEW

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

judgment. Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir.

2000). Summary judgment is appropriate when the evidence,

viewed in favor of the non-moving party, id., “shows that there is

no genuine dispute as to any material fact and the movant is enti-

tled to judgment as a matter of law,” FED. R. CIV. P. 56(a).

DISCUSSION

Thompson argues that the district court erred in granting

summary judgment for the county on his age discrimination claim.

The Age Discrimination in Employment Act provides that “[i]t

shall be unlawful for an employer . . . to discharge any individual

or otherwise discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, be-

cause of such individual’s age” if that individual is at least forty

years old. 29 U.S.C. §§ 623(a)(1), 631(a).

We apply the McDonnell Douglas burden-shifting frame-

work to age discrimination claims that rely on circumstantial

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19-11260 Opinion of the Court 13

evidence. 3 Sims v. MVM, Inc., 704 F.3d 1327, 1332–34 (11th Cir.

2013). “Under this framework, a plaintiff must first establish a

prima facie case of discrimination.” Id. at 1332. “Next, the defend-

ant must articulate a legitimate, non-discriminatory reason for the

challenged employment action.” Id. “If the defendant articulates

one or more such reasons, the plaintiff is afforded an opportunity

to show that the employer’s stated reason is a pretext for discrimi-

nation.” Id. “The burden of persuasion always remains on the

plaintiff in an [Age Discrimination in Employment Act] case to

proffer evidence sufficient to permit a reasonable fact finder to con-

clude that the discriminatory animus was the ‘but[]for’ cause of the

adverse employment action.” Id. (citation omitted).

Thompson contends that the district court erred in granting

summary judgment on his age discrimination claim for three rea-

sons. First, he argues that he presented a prima facie case of age

discrimination under the McDonnell Douglas test because he was

replaced by a younger lawyer. Second, Thompson argues that the

county’s legitimate, non-discriminatory reasons for his termination

3 Thompson argues that Brantley’s “ageist” remarks “could very easily consti-

tute direct evidence of an age animus.” But direct evidence, “if believed,

proves the existence of a fact in issue without inference or presumption.” Ro-

jas v. Florida, 285 F.3d 1339, 1342 n.2 (11th Cir. 2002) (citation omitted). Brant-

ley’s remarks are not inference-free. See id. (noting that “only the most blatant

remarks, whose intent could be nothing other than to discriminate on the basis

of some impermissible factor” are direct evidence of unlawful discrimination);

see, e.g., Carter v. City of Miami, 870 F.2d 578, 582 & n.10 (11th Cir. 1989)

(collecting cases).

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14 Opinion of the Court 19-11260

were pretexts because the county shifted its reasons for firing him

and he provided evidence from coworkers that he was “polite,

thoughtful, and helpful.” Third, Thompson argues that, even if he

failed to present a prima facie case of age discrimination, he showed

a convincing mosaic of age discrimination. Thompson contends

that Brantley’s “ageist remarks,” the county’s hiring pattern, and

the county’s “pretextual justification” for his termination together

raised a reasonable inference of the county’s discriminatory intent.

We agree with Thompson that he created a genuine dispute

that he was replaced by a younger lawyer. But we affirm summary

judgment for the county because Thompson failed to show that

the county’s legitimate, non-discriminatory reasons for his termi-

nation were pretexts and because he failed to present a convincing

mosaic of circumstantial evidence that would allow a jury to infer

the county’s discriminatory intent.

Prima Facie Case

To establish a prima facie case that an employee was termi-

nated in violation of the Act, the plaintiff must show that: (1) he

was at least forty years of age at the time of his termination; (2) he

was qualified for the position he held; (3) he was terminated; and

(4) he was replaced by someone “substantially younger” than him.

See Kragor v. Takeda Pharms. Am., Inc., 702 F.3d 1304, 1308 (11th

Cir. 2012).

The district court and the parties assumed that Thompson

satisfied the first three parts, and we do, too. But the district court

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19-11260 Opinion of the Court 15

erred in concluding that Thompson failed to prove the fourth part

of the McDonnell Douglas test.

Thompson satisfied the fourth part by showing that he was

replaced by an attorney substantially younger than him. When

asked whether Thompson was replaced by William Scott—a law-

yer twenty-four years younger than Thompson—Brantley an-

swered: “I think that’s correct.” Indeed, Scott was the first person

hired after Thompson’s termination, only three months after

Thompson’s departure. And Scott was certainly “substantially

younger” than Thompson. See, e.g., Carter v. DecisionOne Corp.,

122 F.3d 997, 1003 (11th Cir. 1997) (observing that as little as a

three-year age difference is “legally significant for [Age Discrimina-

tion in Employment Act] purposes”). This was enough summary

judgment evidence to show a genuine dispute about the fourth part

of the McDonnell Douglas test.

Pretext

Under the McDonnell Douglas test, after a plaintiff estab-

lishes a prima facie case of age discrimination, the defendant “must

articulate a legitimate, non-discriminatory reason for the chal-

lenged employment action.” Sims, 704 F.3d at 1332. The county

explained that it fired Thompson because: (1) he “withdrew from

the Champion case”; (2) he lacked “demonstrated ability to discuss

legal issues in a clear and concise way”; (3) he “responded to stress-

ful litigation situations in a hostile and arrogant manner when in-

teracting with [Brantley] and others within th[e] office during

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16 Opinion of the Court 19-11260

recent months”; and (4) his “behavior [was] not consistent with the

team environment [Brantley] [was] working to build in the Law

Department.” These were legitimate, non-discriminatory reasons

for Thompson’s termination, and Thompson doesn’t argue other-

wise. See Chapman, 229 F.3d at 1034 (“A subjective reason is a

legally sufficient, legitimate, non[-]discriminatory reason if the de-

fendant articulates a clear and reasonably specific factual basis upon

which it based its subjective opinion.”).

The final step under the McDonnell Douglas test is for the

plaintiff “to show that the employer’s stated reason is a pretext for

discrimination.” Sims, 704 F.3d at 1332. Although the district court

did not address pretext, “[w]e may affirm a grant of summary judg-

ment on any ground supported by the record.” Hallums v. Infinity

Ins. Co., 945 F.3d 1144, 1148 (11th Cir. 2019). Because the issue of

pretext was fully briefed and raised at oral argument, we exercise

our discretion to consider it on appeal. See Cuddeback v. Fla. Bd.

of Educ., 381 F.3d 1230, 1236 n.5 (11th Cir. 2004) (“If we were so

inclined, we could remand the pretext issue to the district court to

consider in the first instance. However, where the record is so clear

as to the final outcome of the case and is sufficiently developed for

us to decide the issue, we conclude that a remand here would be a

waste of time and judicial resources.”).

To show a genuine dispute that the county’s “legitimate,

non-discriminatory reason[s]” for firing Thompson were “pre-

text[s],” Thompson needed to demonstrate that “but[]for” his age,

the county would not have fired him. See Sims, 704 F.3d at 1332.

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19-11260 Opinion of the Court 17

Because the county’s legitimate, non-discriminatory reasons were

“one[s] that might motivate a reasonable employer,” Thompson

needed to address the county’s reasons “head on and rebut [them]”

to survive summary judgment. See Chapman, 229 F.3d at 1030

(“[T]he employee cannot succeed by simply quarreling with the

wisdom of [a] reason [that might motivate a reasonable em-

ployer].”).

“[A] reason is not pretext for discrimination ‘unless it is

shown both that the reason was false, and that discrimination was

the real reason.’” Springer v. Convergys Customer Mgmt. Grp.

Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (citation omitted). A

plaintiff must demonstrate “such weaknesses, implausibilities, in-

consistencies, incoherencies, or contradictions in the employer’s

proffered legitimate reasons for its action that a reasonable

fact[]finder could find them unworthy of credence.” Jackson v. Ala.

State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005) (cita-

tion omitted). The plaintiff carries the burden to provide evidence

from which “a reasonable fact finder” could conclude that but for

the plaintiff’s age, the employer would not have fired him. Sims,

704 F.3d at 1332.

Thompson argues that two key facts demonstrated that the

county’s legitimate, non-discriminatory reasons for his termination

were pretexts for age discrimination: (1) the county’s “shifting”

justifications for Thompson’s termination; and (2) Thompson’s

coworkers’ “disagree[ment]” with Brantley’s beliefs about Thomp-

son’s behavior and work performance. But this evidence failed to

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18 Opinion of the Court 19-11260

show that the county’s reasons were false and that discrimination

was the real reason for firing him.

“Shifting” Reasons

Thompson and the dissenting opinion argue that the

county’s legitimate, non-discriminatory reasons for his termination

were pretexts because the reasons were “shifting.” See Cleveland

v. Home Shopping Network, Inc., 369 F.3d 1189, 1194 (11th Cir.

2004) (concluding that the decision maker’s “shifting reasons”

could allow a fact finder to question the decision maker’s credibility

and infer that adverse employment action occurred for reasons

other than those stated). They rely on his termination letter, not-

ing that the letter “include[d] more reasons than were actually told

to [him] in his termination meeting.” While Brantley “explicitly

told” Thompson on June 19 that “she was terminating [him] be-

cause [he] withdr[e]w from the Champion case,” the termination

letter said that Thompson’s “lack of demonstrated ability to discuss

legal issues in a clear and concise way,” his “respon[se] to stressful

litigation situations in a hostile and arrogant manner when inter-

acting with [Brantley] and others,” and his failure to behave “con-

sistent[ly] with the team environment” were the bases for his ter-

mination.

This evidence did not show “shifting” reasons. Before sign-

ing Thompson’s notice of substitution in early December 2014,

Brantley told Thompson that she considered his withdrawal from

Champion to be a “temper tantrum”; that his withdrawal “upset

her”; that he “didn’t work well with others”; that he “always

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19-11260 Opinion of the Court 19

thought that [he] was the smartest person in the room”; that he

“was not a team player”; and that he “acted like a child” who would

“pick up [his] toys and leave” when he couldn’t get his way. That

same month, Brantley informed Thompson that she considered his

withdrawal from Champion to be a fireable offense, and she con-

tinued to confront Thompson about his unprofessional behavior

until his termination in June 2015. Thompson conceded that the

county’s reasons in his termination letter “all . . . stemmed from

the Champion matter.”

Indeed, all of the county’s reasons for firing Thompson—his

withdrawal from Champion, his inability to work with others and

discuss legal issues in a clear and concise manner, and his hostile

reactions to stressful litigation situations—were interrelated, and

Brantley consistently confronted Thompson with concerns about

his behavior from December 2014 through June 2015, when he was

fired. See Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1458

(11th Cir. 1997) (“Although the company gave differing explana-

tions for the selection of employees to be discharged, saying on the

one hand that seniority played no role in the process and that only

an employee’s performance was considered while, on the other

hand, asserting that Lewis was discharged because he had the least

seniority, its reasons are not, as the district court observed, neces-

sarily inconsistent.”); see also Tidwell v. Carter Prods., 135 F.3d

1422, 1428 (11th Cir. 1998) (“At most, the jury could find that per-

formance was an additional, but undisclosed, reason for the deci-

sion; the existence of a possible additional non-discriminatory basis

USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 20 of 37

20 Opinion of the Court 19-11260

for Tidwell’s termination does not, however, prove pretext.”);

Schuster v. Lucent Techs., Inc., 327 F.3d 569, 577 (7th Cir. 2003)

(“Shifting and inconsistent explanations can provide a basis for a

finding of pretext. But the explanations must actually be shifting

and inconsistent to permit an inference of mendacity.” (internal ci-

tation omitted)). The summary judgment evidence showed that

the county’s reasons for terminating Thompson did not shift, but

were part of a consistent problem with Thompson withdrawing

from the Champion case.

The dissenting opinion also asserts that a reasonable jury

could find it “odd” that Brantley waited seven months after

Thompson withdrew from Champion to fire him and could “draw

the reasonable inference that Thompson’s withdrawal from Cham-

pion was not the real reason for his termination.” But Thompson

never argued to the district court or to us that the county’s reasons

were pretexts because of the seven months between his with-

drawal and termination. Even if Thomson made this pretext argu-

ment, the summary judgment evidence was undisputed that Brant-

ley told Thompson as early as December 2014 that withdrawing

from Champion was a “terminable offense.” Brantley didn’t fire

him then because Johnson “discouraged” her from doing it. There

was no oddity for the jury to infer.

The dissenting opinion suggests that nothing happened to

Thompson in the seven months between his withdrawal from

Champion and his termination. But this is not supported by the

record. Thompson testified that Brantley repeatedly admonished

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19-11260 Opinion of the Court 21

him in the months before his termination. For example, at one

meeting after Thompson withdrew from Champion, Brantley “be-

rat[ed]” him because he “was not a team player” and he “didn’t

work well with others.” At another meeting, Brantley told Thomp-

son that she was still “upset” that he had withdrawn from Cham-

pion and that he couldn’t “get along with others.” And at a third

meeting, Brantley was “riding” Thompson again for not being a

“team player.”

Coworkers’ Observations

Thompson also argues that the county’s reasons were pre-

texts because Brantley’s description of his behavior conflicted with

coworkers’ observations “that he communicated in a coherent

manner” and that he was “polite, thoughtful, and helpful.” And the

dissenting opinion contends that the county’s legitimate, non-dis-

criminatory reasons for firing Thompson were “belied . . . by his

co-workers’ opinions of him.” But the “inquiry into pretext”

doesn’t “center[] on” Thompson’s coworkers’ perspectives or “re-

ality as it exists outside of the decision maker’s head”; rather, it

turns on the decision maker’s “beliefs.” See Alvarez v. Royal Atl.

Devs., Inc., 610 F.3d 1253, 1266 (11th Cir. 2010). An employer

“may fire an employee for a good reason, a bad reason, a reason

based on erroneous facts, or for no reason at all, as long as its action

is not for an unlawful reason.” Jefferson v. Sewon Am., Inc., 891

F.3d 911, 924 (11th Cir. 2018) (alteration adopted) (citation omit-

ted).

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22 Opinion of the Court 19-11260

Thompson did not rebut Brantley’s subjective beliefs that

prompted his termination. See Chapman, 229 F.3d at 1034 (con-

cluding that subjective beliefs are “legally sufficient, legitimate,

non[-]discriminatory reason[s]” if the decision maker “articulates a

clear and reasonably specific factual basis” for her beliefs). It was

undisputed that in the months before he was fired Brantley admon-

ished Thompson for his behavior: Thompson conceded that Brant-

ley repeatedly told him that he was acting “ugly” and wasn’t a

“team player”; Thompson admitted to criticizing Johnson for

“set[ting] [him] up”; Thompson didn’t deny that Brantley accused

him of acting disrespectfully during the May 29 meeting; and

Thompson didn’t dispute that Johnson relayed her concerns to

Brantley regarding Thompson’s May 6 conduct. While Thompson

denied accusing Johnson of lying and didn’t remember calling out-

side counsel incompetent, Thompson didn’t refute Brantley’s sub-

jective belief that Thompson “was making [Johnson] miserable

based on the few things [Johnson] would share with [Brantley]

about [Thompson’s] conduct, particularly after the motion for at-

torney fees came in” on May 6.

* * * *

Considering Thompson’s evidence of pretext together, see

Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1292 (11th Cir. 1998),

we conclude that Thompson did not establish a genuine dispute

that the county’s legitimate, non-discriminatory reasons for firing

Thompson were pretexts for age discrimination.

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19-11260 Opinion of the Court 23

Convincing Mosaic

Thompson contends that, even if he didn’t establish a prima

facie case under McDonnell Douglas, he presented a convincing

mosaic of circumstantial evidence that the county fired him for age

discrimination. He argues that three parts of the record “foreclosed

the granting of summary judgment”: (1) Brantley’s “ageist” re-

marks; (2) the county’s “hiring practices”; and (3) the county’s “pre-

textual justification” for his termination.

A “plaintiff will always survive summary judgment if he pre-

sents circumstantial evidence that creates a triable issue concerning

the employer’s discriminatory intent.” Smith v. Lockheed-Martin

Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). “A triable issue of fact

exists if the record, viewed in a light most favorable to the plaintiff,

presents ‘a convincing mosaic of circumstantial evidence that

would allow a jury to infer intentional discrimination by the deci-

sion[]maker.’” Id. (internal footnote and citation omitted). “A

‘convincing mosaic’ may be shown by evidence that demonstrates,

among other things, (1) ‘suspicious timing, ambiguous statements,

and other bits and pieces from which an inference of discriminatory

intent might be drawn,’ (2) systematically better treatment of sim-

ilarly situated employees, and (3) that the employer’s justification

is pretextual.” Lewis v. City of Union City, 934 F.3d 1169, 1185

(11th Cir. 2019) (alteration adopted and citation omitted). A con-

vincing mosaic “may consist only of the plaintiff’s prima facie case

and of the evidence rebutting the employer’s proffered reasons.”

Holland v. Gee, 677 F.3d 1047, 1056 n.2 (11th Cir. 2012).

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24 Opinion of the Court 19-11260

The plaintiff carries the ultimate burden of providing suffi-

cient evidence to “yield[] a reasonable inference of the employer’s

discrimination.” Smith, 644 F.3d at 1346 n.86; see Holland, 677

F.3d at 1056. After all, “convincing mosaic” is just a “metaphor”

for making a circumstantial case. Ortiz v. Werner Enters., 834 F.3d

760, 764–65 (7th Cir. 2016) (explaining that the “convincing mo-

saic” is “not a legal test of any kind” but a “metaphor”).

“Ageist” Remarks

Thompson argues that a jury could infer discriminatory in-

tent from Brantley’s “ageist remarks.” We consider discriminatory

remarks “in conjunction with the entire record.” Ross, 146 F.3d at

1291–92. It was undisputed that, in context, Brantley was referring

to “less experienced” attorneys, not younger attorneys, when she

made the “baby lawyer” remarks. Brantley wanted to shift the law

department into a team model where less experienced lawyers

were supervised by more experienced attorneys. Because the ex-

isting lawyers had all practiced law for over ten to fifteen years,

Brantley was “generally . . . hiring for entry level” positions. See,

e.g., Pirone v. Home Ins. Co., 559 F. Supp. 306, 312 (S.D.N.Y.)

(“The fact that entry level employees are uniformly younger than

persons terminated clearly has no significance. Logic would seem

to suggest that this would be the natural order of things.”), aff’d,

742 F.2d 1430 (2d Cir. 1983) (unpublished). Indeed, Thompson ad-

mitted that Brantley used “baby lawyers” to refer only to inexperi-

enced attorneys: “The people that she was hiring and that she was

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19-11260 Opinion of the Court 25

describing as baby lawyers were basically lawyers that were . . . just

out of law school” or “out for a couple of years.”

As one former supervising attorney explained, “baby law-

yers” just meant “lawyers that had . . . less experience.” Brantley

made the remarks, the former supervising attorney said, “in keep-

ing with her general philosophy about . . . lawyers working on

teams and so forth . . . she would use it sometimes to talk about

having a . . . more experienced lawyer and a less experienced law-

yer working on a case.” That’s how three other lawyers under-

stood the phrase, too: “I always thought of it as a term of endear-

ment for people who didn’t have . . . a lot of legal experience”; “I

did not understand that to be [Brantley’s] mindset, that she was

specifically targeting young lawyers. . . . She would refer to

the . . . newly-hired lawyers[] as ‘baby lawyers’”; “[T]he way I in-

terpret it . . . is experience to me. You could be a younger attorney

and have a lot of experience in a certain area, or you can be an older

attorney and not have a lot of experience in a certain area. So I

didn’t necessarily equate it to age but more so . . . people gaining

experience . . . .” See Moss v. BMC Software, Inc., 610 F.3d 917,

929 (5th Cir. 2010) (finding that the employer’s comment that she

was “hiring someone at a ‘more junior level’ referenced the need

to hire an attorney at a lower level in the organization, as opposed

to the age of the desired candidate”; that, “in this context[,] ‘more

junior level’ could very well refer to an older individual who went

to law school later in life or otherwise had less experience”; and

that the employer’s comment was not “even age-related, and

USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 26 of 37

26 Opinion of the Court 19-11260

therefore not ‘probative of [the employer’s] discriminatory intent’”

(citation omitted)). In context, Brantley’s remarks referred to ex-

perience—not age—and they would not allow a reasonable jury to

infer that the county discriminated against Thompson because of

his age.

The dissenting opinion argues that others in the county at-

torney’s office understood Brantley’s “baby lawyer” remarks to ex-

press a preference for younger lawyers. But our inquiry “centers

on the employer’s beliefs, not the employee’s beliefs[,] and . . . not

on reality as it exists outside the decision maker’s head.” Alvarez,

610 F.3d at 1266. And the summary judgment evidence was undis-

puted about what was in Brantley’s head when she made the “baby

lawyer” remarks. Brantley testified that when she was referring to

hiring young or “baby” lawyers, she “very much wanted to have

an organizational chart where there were less experienced lawyers

who could do . . . ‘grunt work’—research, gathering documents,

writing the first draft of motions and briefs—and that the more ex-

perienced lawyers would bring them along.” Brantley believed she

was referring to experience, not age.

The dissenting opinion also argues that the county’s chief

executive officer’s comments about wanting a younger workforce

was evidence of the county’s discrimination against older workers.

But the chief executive was not involved in firing Thompson, and

“statements by nondecisionmakers . . . will not satisfy the em-

ployee’s burden” in a circumstantial evidence case. See Steger v.

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19-11260 Opinion of the Court 27

Gen. Elec. Co., 318 F.3d 1066, 1079 (11th Cir. 2003) (internal quo-

tation marks and citation omitted).

Hiring Pattern

Thompson and the dissenting opinion contend that a jury

could infer discriminatory intent from the county’s “hiring prac-

tices.” While twelve of the thirteen lawyers hired by the county

after Thompson’s termination were in their thirties, the county

provided an age-neutral explanation for its hiring: Brantley was

hiring for “entry level” positions because she wanted “less experi-

enced lawyers” to do “grunt work” under the supervision of the

experienced attorneys already in the office, causing a natural trend

in age. See Watkins v. Sverdrup Tech., Inc., 153 F.3d 1308, 1315–

16 (11th Cir. 1998) (concluding that, even though plaintiffs showed

that the employer terminated eight engineers all over forty-years-

old and in the same month hired ten new engineers with just one

over forty-years-old, “this superficial presentation . . . failed to sup-

port any inference of intentional age discrimination after [the com-

pany] explained the data in a plausible, age-neutral fashion”).

Thompson did not offer evidence about the law depart-

ment’s vacancies, job descriptions, applicant pools, or selection

processes that provided context to the county’s new hires. With

no information about the other candidates’ ages and qualifications,

for example, a reasonable jury would have no basis to draw infer-

ences of discriminatory intent from the county’s hiring pattern.

See Zaben, 129 F.3d at 1458 (rejecting argument about ageist hiring

pattern because there was no evidence “about the demographics of

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28 Opinion of the Court 19-11260

job applicants”); Brown v. Am. Honda Motor Co., 939 F.2d 946,

952 (11th Cir. 1991) (“Statistics . . . without an analytic foundation[]

are virtually meaningless. To say that very few black[ applicants]

have been selected by Honda does not say a great deal about

Honda’s practices unless we know how many black[ applicants]

have applied and failed and compare that to the success rate of

equally qualified white applicants.”). 4

Pretext

As we explained previously, the county’s legitimate, non-

discriminatory reasons for firing Thompson were not pretexts.

Thompson argues that the county’s reasons were pretexts because

the county provided “shifting” justifications for his termination and

because his coworkers “disagreed” with Brantley’s beliefs about

Thompson’s behavior and performance. The evidence did not

show “shifting” reasons, but rather that the county’s reasons

“all . . . stemmed from the Champion matter.” And Thompson

presented no evidence that rebutted Brantley’s subjective beliefs

that prompted his termination. Because the circumstantial evi-

dence offered by Thompson did not establish pretext, this evidence

4 We need to clarify one point about the county’s hiring pattern. The dissent-

ing opinion suggests that the county replaced thirteen lawyers over the age of

forty with thirteen entry level attorneys mostly under the age of forty. That

is not supported by the record. The evidence shows that, during Brantley’s

tenure as county attorney, nine lawyers left the office. Seven were over forty

and two were under forty. When Brantley retired in 2017, nine lawyers over

the age of forty were still working in the office. Two of them were older than

Thompson, including one attorney who was seventy-four.

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19-11260 Opinion of the Court 29

did not contribute to a “convincing mosaic” that would allow a jury

to infer intentional discrimination.

CONCLUSION

The district court erred in concluding that Thompson failed

to establish the fourth part of his prima facie burden under McDon-

nell Douglas. But we still affirm because Thompson failed to es-

tablish a genuine issue of material fact as to whether the county’s

legitimate, non-discriminatory reasons for his termination were

pretexts for age discrimination and because he failed to present a

convincing mosaic of circumstantial evidence that the county fired

him because of his age.

AFFIRMED.

USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 30 of 37

19-11260 ROSENBAUM, J., dissenting 1

ROSENBAUM, Circuit Judge, dissenting:

I agree with the Majority Opinion’s conclusion that Thomp-

son, at the very least, established a genuine issue of material fact on

the fourth part of his prima facie case under McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973)—that he was replaced by some-

one “substantially younger” than he was. But Thompson also

raised a genuine issue of material fact at the final stage of the

McDonnell Douglas framework, concerning whether the county’s

explanation for his termination was pretextual. Alternatively and

additionally, Thompson presented enough evidence to allow a rea-

sonable jury to conclude that he set forth a “convincing mosaic” of

age discrimination. The Majority Opinion reaches the opposite

conclusion on both these analyses only because it weighs the evi-

dence. But on summary judgment, we cannot do that. And so I

respectfully dissent from these aspects of the Majority Opinion and

from the judgment.

I begin by noting the relevant considerations under each

framework of analysis: Under the McDonnell Douglas framework,

after the employee establishes a prima facie case of age discrimina-

tion, the employer “must articulate a legitimate, non-discrimina-

tory reason for the challenged employment action.” Sims v. MVM,

Inc., 704 F.3d 1327, 1332 (11th Cir. 2013). If the employer does so,

to survive summary judgment, the employee must “show that the

employer’s stated reason is a pretext for discrimination.” Id.

Alternatively, a “plaintiff will always survive summary judg-

ment if he presents [a convincing mosaic of] circumstantial

USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 31 of 37

2 ROSENBAUM, J., dissenting 19-11260

evidence that creates a triable issue concerning the employer’s dis-

criminatory intent.” Smith v. Lockheed-Martin Corp., 644 F.3d

1321, 1328 (11th Cir. 2011). We have explained that a plaintiff may

show a convincing mosaic in different ways. See Lewis v. City of

Union City, 934 F.3d 1169, 1185 (11th Cir. 2019). Among other ev-

idence, we have said that “(1) suspicious timing, ambiguous state-

ments, and other bits and pieces from which an inference of dis-

criminatory intent might be drawn, (2) systematically better treat-

ment of similarly situated employees, and (3) . . . the employer’s

[pretextual] justification”, id. (cleaned up), may satisfy that burden.

Thompson’s evidence created a genuine dispute of material

fact under each of these frameworks.

First, multiple employees testified that Brantley repeatedly

emphasized her desire to hire “baby lawyers” and to “fill up the

nursery.” To be sure, some took these comments to refer to less-

experienced lawyers. But others concluded Brantley was express-

ing a preference for younger lawyers. And Brantley herself

acknowledged she felt “very strongly about training young law-

yers.”

Not only that, but Brantley held a meeting specifically to tell

her staff that the new chief executive of the county complained

about the age of the staff. Indeed, Brantley told the staff that the

chief executive said that he was “tired of looking at all these older

people” and “wanted the [c]ounty workforce to look younger,” and

asked, “Why can’t we have younger people?”

USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 32 of 37

19-11260 ROSENBAUM, J., dissenting 3

The Majority Opinion dismisses this evidence, saying “our

inquiry centers on the employer’s beliefs, not the employee’s be-

liefs, and not on reality as it exists outside the decision maker’s

head.” Maj. Op. at 26 (cleaned up). And it disregards the chief ex-

ecutive’s statements because “the chief executive was not involved

in firing Thompson.” Id. That misses the point.

Based on her statements to the staff about the chief execu-

tive’s remarks, a reasonable jury could conclude that Brantley

thought the chief executive wanted younger employees, so she

made hiring and firing decisions geared towards responding to the

chief executive’s concerns as she perceived them. And while the

Majority Opinion is surely right that the employer’s beliefs, not the

employee’s beliefs, govern our analysis, we cannot look inside the

decision maker’s head to see her true reasons for her actions. So

when other witnesses reasonably understand their employer’s

words and actions to evidence a discriminatory intent against older

workers, whether the decision maker in fact had that discrimina-

tory intent presents a jury question. This is particularly so here,

given Brantley’s references to the chief executive’s remarks about

being “tired of looking at all these older people,” wanting the

“[c]ounty workforce to look younger,” and asking why the county

couldn’t “have younger people,” and then deciding to replace all

the older lawyers who left with thirteen entry-level positions—

USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 33 of 37

4 ROSENBAUM, J., dissenting 19-11260

which were far more likely to be (and in fact turned out to be) oc-

cupied by significantly younger people. 1

Sure, after observing the witnesses testify, a reasonable jury

could alternatively conclude, as the Majority Opinion has, that

Brantley never had any intention to discriminate against older peo-

ple. But on summary judgment, it is not our role to weigh the ev-

idence and decide which of two reasonable inferences to draw from

it.

Second, Brantley was not consistent about her reason for fir-

ing Thompson. She told Thompson she was firing him because of

his withdrawal from the Champion case, but the termination letter

did not even mention the withdrawal. Instead, it listed

1 The Majority Opinion says that this dissent “suggests that the county re-

placed thirteen lawyers over the age of forty with thirteen entry level attor-

neys mostly under the age of forty,” and “[t]hat is not supported by the rec-

ord.” Maj. Op. at 28 n.4. To be clear, that is not what I am saying (and the

Majority Opinion cites nothing in this dissent for that proposition). Rather,

my point is simply that of the thirteen attorneys Brantley hired during her ten-

ure, twelve—92%—were under forty, and the thirteenth—in his early for-

ties—still was more than ten years younger than Thompson. For the sake of

completeness as to the other statistics the Majority Opinion cites, of the nine

attorneys who left the office during Brantley’s tenure, seven were over forty,

and of the two under forty, Brantley had hired both of them (and then replaced

them with attorneys under forty when they left), and one of the two stayed

with the county and just transferred to the office of the chief executive (who,

as I have noted, Brantley said wanted younger employees). Finally, of the nine

lawyers over forty who remained in the office when Brantley retired, six (two-

thirds) were younger at the time of Brantley’s retirement than Thompson was

when he was fired.

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19-11260 ROSENBAUM, J., dissenting 5

Thompson’s “lack of demonstrated ability to discuss legal issues in

a clear and concise way,” his “respon[se] to stressful litigation situ-

ations in a hostile and arrogant manner when interacting with

[Brantley] and others,” and his failure to behave “consistent[ly]

with the team environment” were the bases for his termination. A

reasonable factfinder could construe the difference in reasons be-

tween Brantley’s oral explanation and the written one as “shifting”

reasons. Not only that, but Brantley’s stated reasons in the termi-

nation letter are belied by the favorable performance reviews

Thompson consistently received and by his coworkers’ opinions of

him. These circumstances could allow a reasonable factfinder to

question the sincerity of the reasons Brantley expressed for firing

Thompson.

But they aren’t the only circumstances that a reasonable jury

could find reflect negatively on the shifting reasons for Thomp-

son’s termination. Rather, a jury could question Brantley’s stated

reason for firing Thompson at the time she terminated his employ-

ment—his decision to withdraw from the Champion case—given

that the withdrawal occurred in November 2014, and she did not

end Thompson’s employment for another seven months, in June

2015. Nor does the record contain evidence that Thompson’s with-

drawal was under investigation or review during those seven

months. If Thompson’s withdrawal from Champion was a “firea-

ble” offense, a reasonable jury could find it odd that it took Brantley

seven months after learning of it to get around to pulling the trig-

ger. And viewed in light of the shifting reasons Brantley offered for

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6 ROSENBAUM, J., dissenting 19-11260

Thompson’s termination, a jury could draw the reasonable infer-

ence that Thompson’s withdrawal from Champion was not the

real reason for his termination but rather was pretextual.

The Majority Opinion tries to avoid this problem by first

saying that Thompson never made this argument. See Maj. Op. at

20. But the argument is part and parcel of his shifting-reasons ar-

gument. Perhaps for this reason, the Majority Opinion then goes

on to assert that no jury would question the seven-month lag be-

tween Thompson’s withdrawal from the Champion case and his

termination, since Brantley told Thompson at the time of his with-

drawal that it was a “terminable offense,” but Johnson “discour-

aged” her from firing him. See id. But that only makes Thomp-

son’s firing seven months later, purportedly for withdrawing from

Champion, all the more questionable. As I have noted, it’s not as

though Brantley was investigating Thompson’s actions during the

intervening seven months. Nor was Thompson on any type of pro-

bation or other disciplinary status. Yet seven months later, without

any further action on the withdrawal than had occurred at the time

Brantley said it was a “terminable offense,” Brantley told Thomp-

son he was fired and named only the Champion withdrawal as the

reason.2 A reasonable jury would be well within its discretion to

find that fact indicative of pretext.

2 The Majority Opinion asserts that I “suggest[] that nothing happened to

Thompson in the seven months between his withdrawal from Champion and

his termination.” Maj. Op. at 20. That is inaccurate. What I have said—and

what the Majority Opinion cannot rebut—is that Brantley’s seven-month lag

USCA11 Case: 19-11260 Date Filed: 11/17/2021 Page: 36 of 37

19-11260 ROSENBAUM, J., dissenting 7

Last, the evidence shows that Brantley was in fact commit-

ted to hiring and promoting young attorneys, both before and after

she fired Thompson. The three attorneys hired in 2015 were in

their thirties. In fact, of the thirteen attorneys hired during Brant-

ley’s tenure, twelve were in their thirties. And the thirteenth was

still ten years younger than Thompson. This represented a demo-

graphic shift in the office that did not go unnoticed by staff—one

attorney in the office testified that after Brantley’s arrival, “a num-

ber of . . . senior people [who] had been there . . . for a while left,

and then younger people were hired.” While the Majority Opinion

attempts to sideline this evidence by criticizing Thompson for not

showing the applicant pool from which these thirteen attorneys

were hired, it misses the bigger point: Brantley chose to replace

seasoned, older attorneys in the office with entry-level attorneys,

virtually guaranteeing that they would be significantly younger.

Taking all this evidence together and viewing it in the light

most favorable to Thompson, as we are required to do at summary

between Thompson’s withdrawal from Champion and Brantley’s statement

that she was firing Thompson for withdrawing from Champion cannot be ex-

plained by any kind of investigation, disciplinary process, or probation because

none happened. Seven months is a long time. While Brantley claims that

Johnson “discouraged” her from firing Thompson at the time of the with-

drawal, even if a jury chose to believe that, that does not explain the seven-

month delay. And the fact that no process or anything else to which the Ma-

jority Opinion can point explains the delay provides another basis for why a

reasonable jury could conclude that Brantley’s stated reason for firing Thomp-

son was pretextual.

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8 ROSENBAUM, J., dissenting 19-11260

judgment, Thompson demonstrated disputed issues of material

fact sufficient to overcome summary judgment. Of course, in the

end, a jury could very well find Brantley’s explanations credible and

reasonable. But that’s the jury’s prerogative, not ours. We do not

get to weigh the evidence to resolve a summary-judgment motion.

I respectfully dissent.