Cynthia Diane Yelling v. St. Vincent's Health System

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10017

____________________

CYNTHIA DIANE YELLING,

Plaintiff-Appellant,

versus

ST. VINCENT’S HEALTH SYSTEM,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 2:17-cv-01607-SGC

____________________

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2 Opinion of the Court 21-10017

Before BRANCH and BRASHER, Circuit Judges, and WINSOR,∗ District

Judge.

PER CURIAM:

Cynthia Yelling worked as a hospital nurse for St. Vincent’s

Health System. After St. Vincent’s fired her, Yelling sued, alleging

race discrimination (including hostile work environment) and re-

taliation under Title VII and 42 U.S.C. § 1981. The district court

granted summary judgment for St. Vincent’s, 1 and Yelling ap-

pealed.

On appeal, Yelling contends she presented sufficient evi-

dence to survive summary judgment as to all claims. She also con-

tends that after Bostock v. Clayton County, 140 S. Ct. 1731 (2020), it

is not appropriate to apply the McDonnell Douglas framework to a

“mixed-motive” retaliation claim. After careful review, and with

the benefit of oral argument, we conclude that (i) Yelling’s hostile

work environment claim fails because there is no evidence of se-

vere or pervasive harassment; (ii) Bostock did nothing to undermine

application of McDonnell Douglas to retaliation claims because but-

for causation still applies; (iii) Yelling’s retaliation claim cannot sur-

vive—either under McDonnell Douglas or otherwise; and (iv)

∗ Honorable Allen Winsor, United States District Judge for the Northern Dis-

trict of Florida, sitting by designation.

1 With the parties’ consent, a magistrate judge presided over the case and is-

sued the order on appeal. See 28 U.S.C. § 636(c).

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21-10017 Opinion of the Court 3

Yelling’s disparate-treatment claim fails because there is no evi-

dence that race played a role in her termination. We therefore af-

firm.

I.

We review a grant of summary judgment de novo, viewing

the evidence in the light most favorable to the nonmoving party.

Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1311 (11th Cir. 2018) (cit-

ing Battle v. Bd. of Regents for the State of Ga., 468 F.3d 755, 759 (11th

Cir. 2006)). “Summary judgment is proper if the evidence shows

‘that there is no genuine dispute as to any material fact and the mo-

vant is entitled to judgment as a matter of law.’” Id. (quoting Fed.

R. Civ. P. 56(a)).

Because we resolve all factual disputes in the nonmovant’s

favor, the “‘facts,’ as accepted at the summary judgment stage of

the proceedings, may not be the ‘actual’ facts of the case.” Priester

v. City of Riviera Beach, 208 F.3d 919, 925 n.3 (11th Cir. 2000). What

follows are the facts as accepted for summary judgment purposes.

II.

In 2010, Yelling began work as a pool nurse in St. Vincent’s

Birmingham hospital. Pool nurses were not permanently assigned

to any hospital unit; instead, they worked throughout the hospital

as needed. Yelling later secured a permanent registered nurse as-

signment in St. Vincent’s Clinical Decision Unit (“CDU”). The

CDU cared for patients who needed general observation, lab work,

or other tests.

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4 Opinion of the Court 21-10017

Yelling initially worked weekday shifts in the CDU, but she

switched to weekend shifts in 2013. Her supervisors—charge nurse

Casi Dubose and the patient care supervisor—sometimes had her

work extra shifts during the week. Yelling would also volunteer to

serve as a relief charge nurse when the CDU needed one. Dubose

usually selected white pool nurses for those assignments, but she

did choose Yelling—who is black—a few times.

During these first few years, things went smoothly. Dubose

evaluated Yelling’s job performance and reported that Yelling gen-

erally met expectations. But the employment relationship began to

sour in 2015.

In March of that year, President Obama visited Lawson State

Community College—a predominantly black school Yelling had

attended. While nurses were chatting one day at the nurse station,

charge nurse Jimmy Wilhite remarked, “What is he doing coming

here? Is he handing out food stamps?”

After that, as Yelling explains, the CDU “got really kind of

heated with . . . racially disparaging comments.” Yelling overheard

white pool nurse Sandy Sheffield say, “Michelle Obama looks like

a monkey” and that the “President is a piece of shit.” White staffer

Tiffany Hardy made similar remarks. So too did white weekday

nurse Linda Powell, who said President Obama was “stupid,” was

the “worst president ever,” and “needs to go back to Africa.”

Yelling also heard these three coworkers refer to black pa-

tients as “boy” or “girl,” “crack heads,” “welfare queens,” or

“ghetto fabulous.” And three other white coworkers—Tonya

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Larimore, Robin Calvert, and Jennifer Laroe—talked at the nurse

station about their “redneck status,” owning guns, and being “con-

federate flag flyers.”

Yelling does not remember having any racial insult or slur

directed at her personally. Still, Yelling reported the comments as

offensive to the house supervisor on June 14, 2015. She also com-

plained that Dubose maintained a “quota” of only staffing one

black nurse per shift. St. Vincent’s did not investigate Yelling’s com-

plaints or discipline any CDU staff for racist comments or staffing

practices.

The weekend after Yelling complained, three coworkers re-

ported that she left the CDU without explanation, acted lethargic

and unsteady upon returning, and then fell asleep at the nurse sta-

tion. When Dubose learned of Yelling’s reported behavior that

same day, she ordered the house supervisor to suspend Yelling

pending a drug test. Yelling’s suspension lasted only through the

next weekend. The drug test came back negative, and St. Vincent’s

paid Yelling for the time she was suspended.

Before Yelling returned from her suspension, Dubose

reached out to other CDU employees. She told each one about ex-

pected employee behavior, asked them to document any future is-

sues with other staff, and emphasized the importance of wearing

trackers. (St. Vincent’s required CDU nurses to wear devices that

tracked their physical locations throughout each day.)

CDU employees began reporting Yelling for not following

doctors’ patient-care orders and not respecting patients’ personal

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6 Opinion of the Court 21-10017

boundaries. They specifically reported that Yelling disconnected a

patient’s IV, made that patient uncomfortable by praying with her

in an unwanted way, delayed another patient’s blood transfusion,

and did not properly administer another’s antibiotic. Citing this

conduct, St. Vincent’s placed Yelling in step one of its four-step dis-

ciplinary program by giving her a “coaching agreement” in Octo-

ber 2015. The coaching agreement outlined St. Vincent’s expecta-

tions of Yelling, but it did not carry with it any suspension or loss

of pay.

On November 22, 2015, Yelling accused her coworkers of

stealing lab orders she printed. Yelling and Calvert got into a heated

argument over the accusation, and Yelling shouted that the act of

stealing the lab slips was “wicked.” She warned that the act would

“curse” the perpetrator’s children, their children’s children, and so

on. Dubose learned of the incident and ordered the house supervi-

sor to send Yelling home for the rest of the day. Calvert was not

suspended.

When Yelling returned to work the next day, she met with

Dubose and three other supervisors. Yelling complained that per-

sonnel issues with non-white CDU staff were “dealt with differ-

ently” than those with white staff. She filed an EEOC charge that

same day, alleging race discrimination, hostile work environment,

and other types of discrimination not at issue in this case (age, sex,

religion, disability).

On November 24, and despite Yelling’s complaints, St. Vin-

cent’s moved Yelling to step two of its disciplinary process by

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21-10017 Opinion of the Court 7

giving her a “verbal agreement.” The verbal agreement cited Yell-

ing’s outburst toward her coworkers regarding the lab slips. By

signing it, Yelling agreed to communicate more appropriately with

her coworkers and not call them names. But the verbal agreement,

like the coaching agreement, did not require any suspension or loss

of pay.

Friction between Yelling and her coworkers continued. On

January 10, 2016, Yelling had another heated argument with a

nurse. It began while Yelling was at the nurse station talking to the

son of a patient in Room 610. The other nurse approached and ac-

cused Yelling of not taking care of the Room 610 patient, forcing

that nurse to step in and do Yelling’s job. (The patient was assigned

to Yelling.) Yelling filed a workplace violence complaint against the

nurse over the incident, although it involved no violence.

When investigating her complaint, Yelling’s supervisors

checked her tracking report. The report showed that Yelling did

not enter Room 610 any time after 4:01 p.m. Yelling, though, had

written on the patient’s chart that she observed the patient be-

tween 7 and 8 p.m. Six CDU employees separately reported that

they saw Yelling at the nurse station after 4:01 p.m., but not in

Room 610.

In February 2016, Yelling met with Dubose, another super-

visor (who was black), and a human-resources representative to

discuss the investigation. These supervisors told Yelling about the

tracking report, about its inconsistency with her written reports,

and about their belief that she falsified the patient’s record. And

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8 Opinion of the Court 21-10017

citing the alleged falsification, they fired Yelling effective immedi-

ately. Yelling professed her innocence, telling them that her tracker

did not always work, which she said she had told them before. But

Dubose and her colleagues stuck with their decision to fire Yelling.

Although Yelling had not progressed through all four steps

of St. Vincent’s disciplinary process, her supervisors told her falsi-

fying patient records prompts automatic termination. Before Feb-

ruary 2016, white CDU staffers Felicia Parrish, Michael Pike, and

Powell had failed to document making patient rounds or did so in-

accurately. St. Vincent’s disciplined these employees but did not

immediately fire them.

St. Vincent’s later replaced Yelling with a white nurse, and

this suit followed.

III.

As noted above, Yelling alleged discrimination and retalia-

tion under Title VII and § 1981. Her discrimination claims included

separate claims for hostile work environment and disparate treat-

ment. We address each claim in turn.

A.

To succeed on a racially hostile work environment claim un-

der Title VII or § 1981, Yelling must prove: (1) she belongs to a pro-

tected class, (2) she experienced unwelcome harassment, (3) the

harassment was based on her race, (4) the harassment was suffi-

ciently severe or pervasive to alter the terms of her employment,

and (5) employer responsibility under a theory of vicarious or

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21-10017 Opinion of the Court 9

direct liability. Smelter v. S. Home Care Servs. Inc., 904 F.3d 1276, 1283

n.3, 1284 (11th Cir. 2018) (citing Miller v. Kenworth of Dothan, Inc.,

277 F.3d 1269, 1275 (11th Cir. 2002)).

Yelling has certainly provided evidence from which a jury

could find she satisfied the first two elements. (St. Vincent’s does

not contend otherwise.) But Yelling has not provided sufficient ev-

idence from which a jury could conclude the CDU was “permeated

with ‘discriminatory intimidation, ridicule, and insult, . . . suffi-

ciently severe or pervasive to alter the conditions of [her] employ-

ment and create an abusive working environment.’” Harris v. Fork-

lift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB

v. Vinson, 477 U.S. 57, 65, 67 (1986)).

Showing that harassment is sufficiently severe or pervasive

requires showing both a subjective and objective component. Men-

doza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (en banc).

Specifically, “[t]he employee must ‘subjectively perceive’ the har-

assment as sufficiently severe and pervasive . . . and this subjective

perception must be objectively reasonable.” Id. (quoting Harris, 510

U.S. at 21). Yelling has met her burden as to the subjective showing;

she presented evidence clearly showing she subjectively perceived

her coworkers’ conduct as severe or pervasive. But she falls short

as to the objective component.

“[T]he objective severity of harassment should be judged

from the perspective of a reasonable person in the plaintiff’s posi-

tion, considering ‘all the circumstances.’” Oncale v. Sundowner Off-

shore Servs., Inc., 523 U.S. 75, 81 (1998) (quoting Harris, 510 U.S. at

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10 Opinion of the Court 21-10017

23). The Supreme Court, this court, and other Circuits have iden-

tified a nonexhaustive list of factors “to delineate a minimum level

of severity or pervasiveness necessary for harassing conduct.” Men-

doza, 195 F.3d at 1246 (citations omitted). Those factors are (1) the

conduct’s frequency, (2) its severity, (3) whether it was physically

threatening or humiliating, rather than “mere offensive utter-

ance[s],” and (4) whether it unreasonably interfered with the em-

ployee’s job performance. Allen v. Tyson Foods, Inc., 121 F.3d 642,

647 (11th Cir. 1997) (citing Harris, 510 U.S. at 23).

We examine the conduct in its context, “not as isolated

acts.” Mendoza, 195 F.3d at 1246 (citing Allen, 121 F.3d at 647). And

this context includes comments and conduct beyond the

timeframe otherwise actionable. See Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 104-05 (2002) (holding that the scope of har-

assment claims includes conduct that occurred outside 42 U.S.C.

§ 2000e-5(e)(1)’s EEOC filing period so long as the last-contributing

act occurred within that period). We therefore recognize that the

district court—by declining to consider Wilhite’s statements about

President Obama that were outside the EEOC charge period—did

not consider the entire scope of Yelling’s claim. But with a de novo

review, it makes no difference now whether the district court did

(or did not) consider all appropriate factors.

We conclude that Yelling has not presented evidence that

would allow a reasonable jury to find in her favor. Yelling cites her

own testimony that St. Vincent’s became “kind of heated” with rac-

ist comments, or that her coworkers generally made racist

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comments multiple times. But that testimony lacks the specificity

necessary to show frequency. Cf. Fernandez v. Trees, Inc., 961 F.3d

1148, 1153-54 (11th Cir. 2020) (reasoning that employee’s testi-

mony harassment occurred “every other day” or “nearly every

day,” which coworkers corroborated, was more specific than

vague testimony harassment occurred “constantly”); Nitkin v. Main

Line Health, 67 F.4th 565, 570-71 (3d Cir. 2023) (similar). And Yelling

has not cited evidence that her coworkers’ conduct was so extreme

as to make up for the infrequency. See Adams v. Austal, U.S.A.,

L.L.C., 754 F.3d 1240, 1253-54 (11th Cir. 2014) (reasoning that

where harassment is isolated but extreme, an employee may still

have an actionable claim).

We begin with the comments about the former President

and First Lady. We cannot say that all of these comments were

race-based—as opposed to political or personal disagreement. For

example, comments that the President was “stupid,” the “worst,”

or a “piece of shit” are not inherently racial. But even if we consid-

ered these comments race-based, and even drawing all reasonable

inferences in Yelling’s favor, we conclude no reasonable jury could

conclude these comments evince extreme harassment.

This is true even when considering these comments to-

gether with other comments—several of which plainly were racist.

Those comments were only isolated epithets rather than extreme

harassment. The mere fact that a supervisor (Wilhite) uttered at

least one does not automatically transform the conduct (still inex-

cusable) from boorish or crude to extreme. Cf. Adams, 754 F.3d at

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12 Opinion of the Court 21-10017

1254-55 (considering a supervisor who uttered “n-----” in front of

plaintiff). And Yelling does not cite any evidence that her cowork-

ers aimed these or any comments at her personally. To be sure,

Yelling need not be the intended target of harassment to succeed.

Walker v. Ford Motor Co., 684 F.2d 1355, 1359 n.2 (11th Cir. 1982).

But overhearing offensive comments is less severe or humiliating

than being the intended target of direct harassment. See Adams, 754

F.3d at 1251-57; cf. Miller, 277 F.3d at 1277 (reasoning that the plain-

tiff cited evidence of severe harassment where he “did not suffer

from overhearing occasional off-color comments,” but instead ex-

perienced a coworker’s shouting derogatory names at him). Even

Smelter, on which Yelling relies heavily, drew this distinction. 904

F.3d at 1285-86 (“[The harassing coworker] did not simply use the

epithet in [the plaintiff’s] presence; instead, she directed it at [the

plaintiff] as a means of insulting her in the midst of an argument.”).

Yelling also points to the Larimore, Calvert, and Laroe com-

ments about being “confederate flag flyers” or “redneck” gun own-

ers, which the district court did not view as race-based. She argues

at length that we must view these statements as racial harassment

because of the context in which they were made. But the problem

is that Yelling does not cite evidence adequately illuminating the

context she says we must consider. She instead relies heavily on

generalizations about changing “societal norms”—such as recent

civil rights protests and confederate monument removals—that

shed no light on what she experienced at St. Vincent’s. The evi-

dence that Yelling does cite to that end is that she was regularly the

only black nurse on her shift and that coworkers other than

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Larimore, Calvert, and Laroe made racist statements about the

Obamas and patients. But that does not speak to the context of the

conversations in which the statements were uttered. Nothing cited

suggests, for example, that a coworker called herself a “confederate

flag flyer” in conjunction with a racial slur or in the same discussion

as one.

We cannot conclude that the comments about the confed-

erate flag or being gun-carrying rednecks were racial harassment

since Yelling only offers them in a vacuum. But even if we agreed

with Yelling that they were race-based harassment, the comments

still would not—alone or with everything else Yelling offers—be

sufficient to show a hostile work environment.

There is no question that Yelling overheard race-based com-

ments that do not belong in any workplace. But it is a “bedrock

principle” that not all subjectively offensive language in the work-

place violates Title VII. Reeves v. C.H. Robinson Worldwide, Inc., 594

F.3d 798, 809 (11th Cir. 2010) (en banc). Title VII only prohibits

harassment that is “so objectively offensive as to alter the ‘condi-

tions’ of the victim’s employment.” Oncale, 523 U.S. at 81; see also

Smelter, 904 F.3d at 1283 n.3, 1284. On this summary judgment rec-

ord, no reasonable jury could conclude Yelling experienced that.

Accordingly, the district court did not err in granting summary

judgment as to Yelling’s hostile work environment claims.

B.

Next is Yelling’s retaliation claim, which she based on cir-

cumstantial evidence. This court has “primarily” relied on the

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14 Opinion of the Court 21-10017

McDonnell Douglas framework to evaluate circumstantial-evidence-

based employment claims at summary judgment. See Quigg v.

Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1236 (11th Cir. 2016) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); see also Pat-

terson v. Ga. Pac., LLC, 38 F.4th 1336, 1344-45 (11th Cir. 2022) (citing

Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1135 (11th Cir.

2020) (en banc)) (McDonnell Douglas applicable to Title VII claims);

Gogel, 967 F.3d at 1134 (same for § 1981 claims). Under that familiar

framework, a plaintiff must first make out a prima facie case by

showing (1) she engaged in a statutorily protected activity, (2) she

experienced an adverse employment action, and (3) causation. Lit-

tle v. United Tech., Carrier Transicold Div., 103 F.3d 956, 959 (11th Cir.

1997) (citing Coutu v. Martin Cnty. Bd. of Cnty. Cmm’rs, 47 F.3d 1068,

1074 (11th Cir. 1995)). If the plaintiff makes out a prima facie case,

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

tory reason or reasons” for its actions. Patterson, 38 F.4th at 1345

(citing Gogel, 967 F.3d at 1135). If the employer does, the plaintiff

must show that the proffered reasons were pretext and that the em-

ployer’s real reason was retaliation. Id.; see also Chapman v. AI

Transp., 229 F.3d 1012, 1030 (11th Cir. 2000).

Yelling contends that test does not apply here. She contends

the Supreme Court’s recent decision in Bostock v. Clayton County,

140 S. Ct. 1731 (2020), shows that McDonnell Douglas has no appli-

cation in “mixed motive Title VII retaliation” claims. Init. Br. at 36

(arguing that Bostock “made it clearer than ever that where an em-

ployee can point to any evidence of discrimination or retaliation,

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the case must go to a jury” (emphasis added)). 2 She contends the

appropriate standard for her retaliation claim is akin to the standard

used for mixed-motive discrimination claims under Title VII. Cf.

Quigg, 814 F.3d at 1235. 3 She alternatively contends that if McDon-

nell Douglas does apply, she has shown enough to survive it. Finally,

she contends that—McDonnell Douglas aside—she has presented

2 Yelling did not plead a mixed motive in her complaint, and it is an open

question in this Circuit whether that is necessary. Some unpublished decisions

suggest pleading mixed-motive causation is not required, see Williams v. Fla.

Atl. Univ., 728 F. App’x 996, 999 (11th Cir. 2018); Williams v. Housing Auth. of

Savannah, Inc., 834 F. App’x 482, 489 (11th Cir. 2020), while others have sug-

gested it is, Stevenson v. City of Sunrise, 2021 WL 4806722, at *7 (11th Cir. Oct.

15, 2021); Fonte v. Lee Mem’l Health Sys., 2021 WL 5368096, at *4 (11th Cir. Nov.

18, 2021); Smith v. Vestavia Hills Bd. of Ed., 791 F. App’x 127, 130-31 (11th Cir.

2019). St. Vincent’s did not argue any pleading deficiency, so we assume (with-

out deciding) that there is none.

3 A plaintiff can survive summary judgment on a Title VII discrimination

claim under 42 U.S.C. § 2000e-2(a)(1) by showing that, although an employer

was motivated by more than one reason to take a particular action, a discrim-

inatory reason was “a motivating factor” for the adverse employment action.

Quigg, 814 F.3d at 1239; see also 42 U.S.C. § 2000e-2(a)(1). This theory is known

as a “motivating factor” or “mixed-motive” discrimination claim. In other

words, under the mixed-motive standard, when a plaintiff claims that the em-

ployer acted with mixed motives—and one of those motives was discrimina-

tory—the plaintiff’s claim can proceed, and the plaintiff is not required to

prove that the employer’s stated reason for the adverse action was pretextual.

Id. at 1238-39.

Importantly, however, Yelling’s Title VII retaliation claim is brought under 42

U.S.C. § 2000e-3(a), not § 2000e-2(a)(1). Thus, as explained further in this opin-

ion, the mixed-motive framework does not apply to claims under § 2000e-3(a).

Yelling’s arguments to the contrary are unpersuasive.

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16 Opinion of the Court 21-10017

enough evidence to show a convincing mosaic of retaliation. Yell-

ing is incorrect on each contention.

1.

Though available for Title VII discrimination claims, it is

well-established that the mixed-motive framework does not apply

to Title VII retaliation claims. Univ. of Tex. Sw. Med. Ctr. v. Nassar,

570 U.S. 338, 360 (2013). 4 Rather, to succeed on her retaliation

claim, Yelling must show that her “protected activity was a but-for

cause of the alleged adverse action.” Id. at 362; see also Comcast Corp.

v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020)

(same standard for § 1981 case). The but-for standard asks whether

“a particular outcome would not have happened ‘but for’ the pur-

ported cause.” Bostock, 140 S. Ct. at 1739 (citing Gross v. FBL Fin.

Servs., Inc., 557 U.S. 167, 176 (2009)). “Stated another way, a plain-

tiff must prove that had she not complained, she would not have

been fired.” Jefferson v. Sewon Am., Inc., 891 F.3d 911, 924 (11th Cir.

2018).

4 We use the term “mixed motive” to refer to claims based on the “motivating-

factor” standard applicable in Title VII discrimination claims. See Quigg, 814

F.3d at 1235 (“An employee can succeed on a mixed-motive claim by showing

that illegal bias, such as bias based on sex or gender, ‘was a motivating factor

for’ an adverse employment action, ‘even though other factors also motivated’

the action.” (quoting 42 U.S.C. § 2000e–2(m))). At any rate, to the extent a

retaliation claim based on multiple but-for causes is fairly called a “mixed-mo-

tive” claim, but-for causation still applies. Cf. Gross, 557 U.S. at 177-78.

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21-10017 Opinion of the Court 17

As the Supreme Court explained in Nassar, the motivating-

factor standard under § 2000e-2(m), on the other hand, requires a

“lessened” showing. 570 U.S. at 349. That “lessened” showing is

sufficient for a Title VII discrimination claim, which requires only

a showing that race “was a motivating factor for the defendant’s

adverse employment action,” even if some other (lawful) consider-

ation would have led to the same outcome. Quigg, 814 F.3d at 1239

(citation omitted). In other words, the motivating-factor standard

only asks whether “illegal bias played a role” even if bias was not a

necessary link in the causal chain. Id. at 1241. If it did, the claim can

proceed.

But, as the Supreme Court made clear in Nassar, that “less-

ened” showing has no application to retaliation claims—like Yell-

ing’s—or any other claim that requires but-for causation. 570 U.S.

at 360 (“Title VII retaliation claims must be proved according to

traditional principles of but-for causation, not the lessened causa-

tion test stated in § 2000e–2(m). This requires proof that the unlaw-

ful retaliation would not have occurred in the absence of the al-

leged wrongful action or actions of the employer.”).

Bostock, which involved a Title VII sex discrimination

claim—not a retaliation claim—did nothing to change this. Bostock

noted that Title VII bars discrimination “because of” sex, see 42

U.S.C. § 2000e-2(a)(1); that “because of” incorporates traditional

but-for causation; and that sometimes “events have multiple but-

for causes.” Bostock, 140 S. Ct. at 1739-40. That means an employer

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18 Opinion of the Court 21-10017

cannot escape liability by pointing to some factor other than sex it

considered if sex “was one but-for cause.” 5 Id. at 1739.

Bostock’s description of but-for causation—and the idea that

outcomes can have multiple but-for causes—was nothing new.

The Court articulated the longstanding traditional test for but-for

causation: “a but-for test directs us to change one thing at a time

and see if the outcome changes.” Id. That standard is “textbook tort

law,” Nassar, 570 U.S. at 347, and reflects “the common under-

standing” of factual causation, Burrage v. United States, 571 U.S. 204,

211-12 (2014) (illustrating the point with a baseball hypothetical).

In arguing that Bostock undermines application of McDonnell

Douglas in the retaliation context, Yelling conflates the concept of

multiple but-for causes with the concept of mixed motives. If there

are multiple but-for causes, the removal of any one would change

the outcome. Each would be a “necessary condition for the out-

come,” Restatement (Third) of Torts: Phys. & Emot. Harm § 26

cmt. b (Am. L. Inst. 2010), regardless of whether there was another

such “necessary condition.” Each could be viewed as “the straw

that broke the camel’s back.” Burrage, 571 U.S. at 211; cf. also Bos-

tock, 140 S. Ct. at 1742 (“If an employer would not have discharged

5 Bostock also noted that the motivating-factor (i.e., mixed-motive) test was

alive and well for discrimination claims under § 2000e-2(a)(1), meaning that

“liability [could] sometimes follow even if sex wasn’t a but-for cause of the

employer’s challenged decision.” Bostock, 140 S. Ct. at 1739–40. Nevertheless,

Bostock focused its analysis on the traditional but-for causation standard be-

cause the motivating-factor test was not at play. Id. at 1740.

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21-10017 Opinion of the Court 19

an employee but for that individual’s sex, the statute’s causation

standard is met . . . .”).

With a mixed-motive (or motivating-factor) claim, on the

other hand, a plaintiff need only show that a protected considera-

tion contributed in some way to the outcome—even if it ultimately

changed nothing. Quigg, 814 F.3d at 1235. Consider the Supreme

Court’s example in Babb v. Wilkie:

Suppose that a decision-maker is trying to decide

whether to promote employee A, who is 35 years old,

or employee B, who is 55. Under the employer’s pol-

icy, candidates for promotion are first given numerical

scores based on non-discriminatory factors. Candi-

dates over the age of 40 are then docked five points,

and the employee with the highest score is promoted.

Based on the non-discriminatory factors, employee A

(the 35-year-old) is given a score of 90, and employee

B (the 55-year-old) gets a score of 85. But employee B

is then docked 5 points because of age and thus ends

up with a final score of 80. The decision-maker looks

at the candidates’ final scores and, seeing that em-

ployee A has the higher score, promotes employee A.

140 S. Ct. 1168, 1174 (2020). Age bias factored into (or motivated)

the decision, meaning the decision was not “free from” discrimina-

tion. Id. (quoting 29 U.S.C. § 633a(a)). But the younger employee

would have secured the promotion either way, meaning “age was

not a but-for cause of the decision.” Id. Rather than serving as one

of several but-for causes, it was no but-for cause at all; it did not

break the camel’s back. But that did not defeat the claim because

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20 Opinion of the Court 21-10017

(unlike here) the statute at issue, 29 U.S.C. § 633a(a), did not re-

quire but-for causation. Rather, the statute required “that person-

nel actions be untainted by any consideration of age.” Babb, 140 S.

Ct. at 1171.

Yelling’s case is different. A Title VII retaliation claim re-

quires “proof that the desire to retaliate was the but-for-cause of

the challenged employment action.” Nassar, 570 U.S. at 352; id. at

360 (“Title VII retaliation claims must be proved according to tra-

ditional principles of but-for causation, not the lessened causation

test stated in § 2000e–2(m).”). Where but-for causation is required,

a plaintiff with evidence of only a tagalong “forbidden considera-

tion” cannot meet her summary judgment burden because she can-

not show “that the unlawful retaliation would not have occurred

in the absence of the alleged wrongful action or actions of the em-

ployer.” Id.

Here, Yelling alleges multiple but-for causes: she contends

St. Vincent’s took its adverse action because of unlawful retaliation

and because of other lawful reasons. But this does not transform

her claim into a mixed-motive claim, and it does not relieve her of

her obligation to show an unlawful but-for cause resulted in the al-

leged wrongful action. Moreover, in the context of the McDonnell

Douglas framework, it does not relieve Yelling of her obligation to

respond to St. Vincent’s legitimate reason with a showing of pre-

text.

It is true that if Yelling were correct that there were two but-

for causes—unlawful retaliation and a lawful factor—she could

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21-10017 Opinion of the Court 21

have a claim if the two combined to result in an adverse action that

would not have occurred without that combination. In that in-

stance, the retaliation would be a but-for cause because the adverse

action would not have occurred without it. The fact that a lawful

consideration was also a necessary factor would not defeat her

claim. See Bostock, 140 S. Ct. at 1739.

But in this situation—and assuming Yelling makes a prima

facie case—St. Vincent’s can still meet its burden of production by

showing that the adverse action was based on the lawful consider-

ation. At this stage, where St. Vincent’s burden is “exceedingly

light,” Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 (11th Cir.

1983), all St. Vincent’s must do is produce evidence that it had a

legitimate reason for its decision. “The defendant need not per-

suade the court that it was actually motivated by the proffered rea-

sons. It is sufficient if the defendant’s evidence raises a genuine is-

sue of fact as to whether it discriminated against the plaintiff.” Tex.

Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 254–55 (1981). Thus, by

articulating a legitimate reason—rather than remaining “silent in

the face of the presumption” that follows a prima facie showing—

St. Vincent’s meets its burden, leaving Yelling to show that retalia-

tion was a but-for cause of the adverse action. Id. at 254-56. “Im-

portantly, throughout this entire process, the ultimate burden of

persuasion remains on the employee.” Gogel, 967 F.3d at 1135

(quoting Sims v. MVM, Inc., 704 F.3d 1327, 1333 (11th Cir. 2013)). In

short, nothing about Bostock is inconsistent with applying McDon-

nell Douglas to claims requiring but-for causation—even if a plaintiff

asserts multiple but-for causes. The district court therefore did not

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22 Opinion of the Court 21-10017

err in applying it. And as we explain next, the district court did not

err in concluding that Yelling could not succeed under that frame-

work.

2.

Below, Yelling proffered four adverse employment actions:

(1) the drug test and related suspension, (2) progressive discipline

by the coaching and verbal agreement, (3) Dubose’s not always

choosing her as a relief charge nurse, and (4) her firing. The district

court held that the first three did not qualify as “adverse employ-

ment actions.” See Monaghan v. Worldpay US, Inc., 955 F.3d 855, 861

(11th Cir. 2020) (holding that in the retaliation context, an adverse

action is one that “well might have dissuaded a reasonable worker

from making or supporting a charge of discrimination” (quoting

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006))).

As for Yelling’s firing, the court applied McDonnell Douglas. It rea-

soned that Yelling did not show but-for causation because there

was no evidence that St. Vincent’s justification—falsification of pa-

tient records—was pretextual.

We need not address whether the district court erred in

holding that the first three events were not adverse actions. Even

if all the events qualify, Yelling has not shown retaliatory intent was

a but-for cause behind any of them.

First, assuming Yelling made out a prima facie case that the

drug test and suspension were retaliatory, St. Vincent’s satisfied its

light burden of identifying a nonretaliatory reason for its actions:

three witnesses reported that Yelling left the CDU without

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21-10017 Opinion of the Court 23

explanation and looked under the influence when she returned. See

Chapman, 229 F.3d at 1030. The question, then, is whether Yelling

has pointed to evidence sufficient to allow a reasonable inference

of pretext and that her protected conduct was a but-for cause. She

has not.

Yelling cites the short time between her June 2015 com-

plaints of racism and the subsequent drug test, but timing alone is

not enough to show pretext. See Gogel, 967 F.3d at 1137 n.15. In

short, Yelling has not rebutted St. Vincent’s justification head on or

plausibly suggested retaliation was the reason for the drug test and

suspension. Id. at 1136.

Second, assuming Yelling made a prima facie showing as to

St. Vincent’s placing her in progressive discipline, she has again not

shown pretext. St. Vincent’s offered justifications that could moti-

vate a reasonable employer: that Yelling ignored doctors’ orders

and made a patient uncomfortable by praying with her in an un-

wanted manner. Yelling contends she had good reasons for these

actions. But it is not enough to quibble with St. Vincent’s reasons.

Id. at 1148-49 (“An employer ‘may fire an employee for a good rea-

son, a bad reason, a reason based on erroneous facts, or for no rea-

son at all, as long as its action is not for a discriminatory [or retali-

atory] reason.’” (alteration in original) (quoting Damon v. Fleming

Supermarkets of Fla., Inc., 196 F.3d 1354, 1363 n.3 (11th Cir. 1999)));

Elrod v. Sears, Robuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991).

And Yelling has not shown that but for her protected conduct she

would not have faced the same outcome.

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24 Opinion of the Court 21-10017

Yelling points to no specific evidence to support her claim as

to the relief charge nurse assignments. So she has made no prima

facie case as to this proffered adverse action.

That leaves the fourth proffered action—Yelling’s firing.

Like the drug test, the adverse action occurred a short time (about

two months) after Yelling complained of racism and filed an EEOC

complaint. But St. Vincent’s cited its belief, based on Yelling’s track-

ing report and six witnesses, that Yelling falsified the Room 610 pa-

tient’s treatment information. And Yelling does not rebut that ex-

planation head on. Instead, citing how she told her supervisors her

tracker sometimes malfunctioned, her argument boils down to a

mere disagreement with the proffered explanation.

That is where Yelling’s retaliatory-firing claim fails—she

cites no evidence beyond mere temporal proximity indicating re-

taliatory intent. Her theory is that once she first reported racist

comments in June, St. Vincent’s began building a case against her—

pointing to the drug test, her coworkers’ complaints about her con-

duct, and the coaching and verbal agreements. While this court has

reasoned before that intensive monitoring or harassment by super-

visors can suggest pretext, 6 the evidence here does not allow an in-

ference that St. Vincent’s deliberately searched for a fabricated rea-

son to fire Yelling.

6 See Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 921 (11th Cir. 1993);

Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1522-23 (11th Cir. 1991), super-

seded on other grounds as stated in Munoz v. Oceanside Resorts, Inc., 223 F.3d

1340 (11th Cir. 2000).

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21-10017 Opinion of the Court 25

In short, then, Yelling cannot survive summary judgment

under the McDonnell Douglas framework.

3.

Yelling alternatively argues that her retaliation claims sur-

vive under a “broader” convincing mosaic analysis. As she correctly

notes, plaintiffs relying on circumstantial evidence can always sur-

vive summary judgment if “circumstantial evidence raises a rea-

sonable inference that the employer discriminated.” Smith v. Lock-

heed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (explaining

that McDonnell Douglas is not “the sine qua non” for employee plain-

tiffs).

This court has used the phrase “convincing mosaic” simply

to recognize that courts must consider the totality of a plaintiff’s

circumstantial evidence on summary judgment. See id. That entire

evidentiary picture may include, “among other things,” (1) suspi-

cious timing or ambiguous statements, (2) systematically better

treatment of similarly situated employees, and (3) pretext. Lewis v.

City of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019) (citing Silver-

man v. Bd. of Educ. of City of Chi., 637 F.3d 729, 733-34 (7th Cir. 2011),

overruled by Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016)).

“Convincing mosaic,” however, is not a “legal test of any kind.”

Ortiz, 834 F.3d at 764-65. At the end of the day, a retaliation plain-

tiff’s “mosaic” of evidence must still be enough to allow a reasona-

ble jury to infer but-for causation. Cf. Bailey v. Metro Ambulance

Servs., Inc., 992 F.3d 1265, 1273-74 & n.2, 1277-81 (11th Cir. 2021).

Yelling’s evidence is insufficient to allow that inference.

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26 Opinion of the Court 21-10017

C.

Last is Yelling’s disparate-treatment claim. Yelling cites no

direct evidence of intentional race discrimination. So to survive

summary judgment, she had to point to sufficient circumstantial

evidence of discriminatory intent. See EEOC v. Joe’s Stone Crabs, Inc.,

296 F.3d 1265, 1272 (11th Cir. 2002).

Yelling proffered the same four adverse actions for her dis-

crimination claim as for her retaliation claim. We need only ad-

dress Yelling’s firing, which is indisputably an adverse employment

action. The district court held that the drug test, progressive disci-

pline, and not being assigned as a relief charge nurse did not qualify

as adverse actions for purposes of a discrimination claim. Yelling

did not develop any detailed argument on appeal on why that was

error, and she thus abandoned any claim challenging those three

actions as racially discriminatory.7 See NLRB v. McClain of Ga., Inc.,

138 F.3d 1418, 1422 (11th Cir. 1998).

As to her firing, Yelling argues that she presented a mixed-

motive race discrimination claim and that the district court erred

by applying McDonnell Douglas’s framework instead of Quigg’s

mixed-motive standard. But even applying Quigg’s more lenient

motivating-factor analysis, Yelling’s discrimination claim still fails.

7 Our conclusion here is not inconsistent with our earlier assumption that Yell-

ing pointed to qualifying adverse actions for her retaliation claim. Employer

conduct may be “adverse action” for purposes of a retaliation claim, but not

under the narrower standard that governs disparate-treatment claims. See

Crawford v. Carroll, 529 F.3d 961, 973-74 (11th Cir. 2008).

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21-10017 Opinion of the Court 27

She cites no evidence by which a reasonable jury could conclude

that race at least “played a role” in her firing.8 Quigg, 814 F.3d at

1241. Yelling relies on the same evidence she cites to support her

hostile work environment claim, namely that some people made

racist comments about the Obamas and patients, St. Vincent’s in-

action on Yelling’s complaints, and Dubose’s “quota.” That evi-

dence does not remotely suggest St. Vincent’s decisionmakers—

one of whom was black—considered race when firing Yelling based

on the tracking report. Nor does it suggest Yelling’s race motivated

any of the six witnesses who reported seeing her at the nurse sta-

tion instead of Room 610. She says these were biased witnesses

who made the racist comments discussed earlier, but she cites no

evidence to support that.

Yelling also points to white staffers Felicia Parrish, Pike, and

Powell, whom St. Vincent’s did not fire for misconduct. But St.

Vincent’s disciplined them for mere negligent conduct—for not

documenting patient-care information accurately or at all. Yelling,

in contrast, allegedly committed a more severe intentional of-

fense—falsifying patient information. St. Vincent’s treatment of

these three, therefore, does not support a reasonable inference that

race played a role in Yelling’s terminations.

8 To the extent Yelling alternatively says the district court erred in its applica-

tion of McDonnell Douglas (assuming a plaintiff can even argue both McDonnell

Douglas and Quigg at the same time), she could not succeed under a true-mo-

tive theory for the same reason.

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28 Opinion of the Court 21-10017

The district court did not err by granting summary judg-

ment in St. Vincent’s favor on the discrimination claim.

IV.

The order granting summary judgment for St. Vincent’s is

AFFIRMED.

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21-10017 BRASHER, J., Concurring 1

BRASHER, Circuit Judge, concurring:

I concur in the Court’s opinion. I write separately to discuss

the First Amendment implications of Ms. Yelling’s request that we

hold her employer liable under Title VII for failing to censor her

co-workers’ speech. To be clear, a private hospital can (and proba-

bly should) discourage its nurses from disparaging politicians and

discussing divisive social issues in the hallway. But this case is ulti-

mately about whether Title VII requires employers to adopt that

kind of policy.

As many judges have noted, a Title VII hostile work envi-

ronment claim is “unusual.” Elvig v. Calvin Presbyterian Church, 397

F.3d 790, 793 (9th Cir. 2005) (Fletcher, J., concurring). Title VII bars

discriminatory treatment in the terms, conditions, or privileges of

employment. But a harassment claim isn’t based on “inequality in

hiring, firing, promotions, or duties;” instead, it holds an employer

liable because of “abusive behavior by [a plaintiff’s] coworkers in

the workplace.” Id. Because an employer’s liability for harassment

sometimes turns on an employee’s speech—what they said, how

often they said it, and what they meant by it—avoiding liability for

harassment requires an employer to prohibit certain kinds of

speech in its workplace. See Reeves v. C.H. Robinson Worldwide, Inc.,

594 F.3d 798, 811 (11th Cir. 2010) (en banc).

Although a private employer can adopt a speech code if it

wants, the government usually cannot force people to speak in a

particular way. See R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992).

For this reason, Title VII harassment law has always had an uneasy

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2 BRASHER, J., Concurring 21-10017

coexistence with the First Amendment. The government can pe-

nalize speech when that speech is merely incidental to tortious con-

duct. See Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011). And

nonexpressive conduct is often the root of a workplace harassment

claim. Id. But “[w]here pure expression is involved, Title VII steers

into the territory of the First Amendment.” DeAngelis v. El Paso

Mun. Police Officers Ass’n, 51 F.3d 591, 596 (5th Cir. 1995). After all,

when a plaintiff brings a Title VII “harassment claim[] founded

solely on verbal insults” or other speech, she is necessarily asking a

court to impose “content-based, viewpoint-discriminatory re-

strictions on speech,” id. at 596–97, and these kinds of restrictions

are subject to strict judicial scrutiny. Reed v. Town of Gilbert, Ariz.,

576 U.S. 155, 172 (2015).

To be clear, not every application of harassment law raises

free speech concerns. As I’ve already noted, the government can

regulate non-expressive conduct, even if doing so has an incidental

effect on speech. The First Amendment also “permit[s] restrictions

upon the content of speech in a few limited areas.” United States v.

Stevens, 559 U.S. 460, 468 (2010). Most relevant to workplace har-

assment, the government may ban: (1) obscenity, Miller v. Califor-

nia, 413 U.S. 15, 24 (1973), (2) “true threats” of violence, Virginia v.

Black, 538 U.S. 343, 360 (2003), and (3) “fighting words”— “those

personally abusive epithets which, when addressed to the ordinary

citizen, are, as a matter of common knowledge, inherently likely to

provoke violent reaction,” Cohen v. California, 403 U.S. 15, 20

(1971).

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21-10017 BRASHER, J., Concurring 3

Turning to the facts of this case, Ms. Yelling’s hostile work

environment claim is based on pure speech. The Court’s opinion

fulsomely catalogues the boorish comments that Ms. Yelling over-

heard. No one would confuse Ms. Yelling’s co-workers with Mar-

cus Cicero or Henry Clay. But the question remains: how should

we assess this claim in light of the First Amendment?

The EEOC—which filed a thoughtful amicus brief in sup-

port of Yelling’s position—says we should disregard any free-

speech implications. Its position at oral argument, which is con-

trary to decades of precedent, was that the First Amendment has

no role to play in tort litigation between private parties. That’s the

wrong answer. A court cannot enforce a law in a dispute between

private parties if doing so requires it to “impose invalid restrictions

on [a person’s] constitutional freedoms of speech and press.” New

York Times Co. v. Sullivan, 376 U.S. 254, 265 (1964); e.g., Snyder v.

Phelps, 562 U.S. 443, 451 (2011) (noting “[t]he Free Speech Clause

of the First Amendment . . . can serve as a defense in state tort

suits); Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 50–51 (1988) (same).

For my part, I don’t think we can ignore the tension between

the First Amendment and Title VII harassment law. Instead, I think

the objective prong of our hostile-work-environment standard

must be applied consistent with First Amendment principles. That

means that the closer objectionable workplace speech is to conduct

or to traditionally unprotected areas of speech, the more leeway a

court should have to find an objectively hostile work environment.

But the closer objectionable speech comes to the heart of the First

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4 BRASHER, J., Concurring 21-10017

Amendment, the more reluctant a court should be to impose tort

liability because of it.

Our harassment law already draws many lines consistent

with the First Amendment. Consider our conclusion that a super-

visor’s objectionable comments are objectively more severe than a

co-worker’s. The reason is that a supervisor’s objectionable com-

ments carry an implicit threat of illegal conduct—discriminatory

treatment in promotion or termination—and a co-worker’s may

not. See Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist., 605 F.3d 703,

710 (9th Cir. 2010) (noting a supervisor’s “advocacy of discrimina-

tory ideas can connote an implicit threat of discriminatory treat-

ment”). Likewise, we have recognized that overhearing an offen-

sive comment is less severe than being the target of that comment.

See e.g., Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1250–57 (11th

Cir. 2014) (finding direct racist comments to be inherently more

harassing than indirect ones). That line makes sense, in part, be-

cause the latter is much closer to “fighting words” than the former.

Direct insults do not “seek to disseminate a message to the general

public, but to intrude upon the targeted [listener], and to do so in

an especially offensive way.” Frisby v. Schultz, 487 U.S. 474, 486

(1988).

Likewise, I would hold that speech on public matters is in-

herently less likely to create a hostile work environment than

speech on private matters. “[W]here matters of purely private sig-

nificance are at issue, First Amendment protections are often less

rigorous.” Snyder v. Phelps, 562 U.S. 443, 452 (2011). But we give the

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21-10017 BRASHER, J., Concurring 5

highest degree of protection to speech on matters of public con-

cern—that is, speech that can “be fairly considered as relating to

any matter of political, social, or other concern to the community.”

Connick v. Myers, 461 U.S. 138, 146 (1983). For this reason, “even

those commentators who conclude the First Amendment gener-

ally permits application of harassment laws to workplace speech

recognize exceptions” for “debate on issues of public concern.” Avis

Rent A Car Sys., Inc. v. Aguilar, 529 U.S. 1138, 1141–42 (2000)

(Thomas, J., dissenting from denial of certiorari) (citing Richard H.

Fallon, Jr., Sexual Harassment, Content Neutrality, and the First Amend-

ment Dog That Didn’t Bark, 1994 SUP. CT. REV. 1, 41, 47 (1994)). See

generally Eugene Volokh, Freedom of Speech and Workplace Harass-

ment, 39 UCLA L. REV. 1791, 1849 (1992).

In any event, these principles are one reason I agree with the

Court that Ms. Yelling’s hostile work environment claim fails as a

matter of law. As Justice Sotomayor recently reminded us, “First

Amendment vigilance is especially important when speech is dis-

turbing, frightening, or painful, because the undesirability of such

speech will place a heavy thumb in favor of silencing it.” Counter-

man v. Colorado, 143 S. Ct. 2106, 2121-22 (2023) (Sotomayor, J., con-

curring). I think we should apply the objective element of work-

place harassment law consistent with that idea.